Any day now, the Supreme Judicial Court of Massachusetts is expected to declare that men can marry men and women can marry women. National politicians are already trying to figure out what response, if any, they should make.
The instinct of many people will be to echo what Dick Cheney said in the vice-presidential debate of 2000: that the regulation of marriage should be left to the states. Massachusetts can recognize same-sex “marriages,” and Vermont “civil unions,” and the other 48 states can reach their own arrangements. Federalism has not, in the past, been understood as an absolute rule in matters marital: The federal government forced states to end polygamy and to allow interracial marriages. But whether the matter should, in theory, be left to the states is irrelevant. The courts are exceedingly unlikely to let that happen.
What happens when a same-sex couple from Wyoming gets “married” in Massachusetts? There is every reason to expect that liberal legal activists will sue, both in federal and state courts, to get Wyoming to recognize that marriage as valid. To be sure, Congress has tried to close off one path to the litigators. The Defense of Marriage Act, passed in 1996, says that states are not required, under the full faith and credit clause, to recognize other states’ same-sex marriages. But a state court could easily twist some state constitutional provision to force that recognition. Or a federal court could strike down the Defense of Marriage Act. Twice already, the Supreme Court has nullified laws that reflect traditional understandings of sexual morality on the theory that such laws are based on an irrational “animus” against gay people. On that reasoning, why should the Defense of Marriage Act stand?
Or a federal court could leave the Defense of Marriage Act alone, but empty it of meaning. The court could reason that Wyoming has the right under the act to decline to recognize same-sex marriages created in Massachusetts, but that its decision to exercise that right is based on an unconstitutional animus. In a world where freewheeling judicial activism is routine and the legal culture is overwhelmingly on the side of progressive understandings of morality, the possibilities are endless. If we didn’t live in that world, perhaps we could put our faith in federalism. But we cannot wish that world away.
We would object to judges’ taking it upon themselves to impose a national regime of gay marriage. But we would also object to what would be imposed. Traditionally, marriage has been understood to be ordered to procreation. This ordering was not, in general, understood in a narrowly instrumental way. The tradition did not insist that “the purpose of marriage is to raise children.” Married couples were never required to have, to want, or even to be capable of having children. Elderly couples could marry. Infertility was not held to be a valid ground for annulment. Still, there was a link to procreation. Impotence was a valid ground for annulment, because it meant that the couple could not effect the behavioral conditions for procreation; that it could not unite in the total, including biological, sense required of true union. It was understood that the ideal setting for the rearing of children was the marriage of their parents.
That ideal could not always be achieved. Tragedy could leave a child parentless and in need of adoption. Children could be born outside of marriage. These realities did not challenge the culture-wide commitment to the ideal, just as the recognition that adultery exists does not bring the virtue of fidelity into question. The widespread practice of divorce and remarriage did, however, challenge the ideal. So have such seemingly marginal developments as the rise of sperm banks. Gay marriage would cut the final cord that ties marriage to the well-being of children. It is a step we should not take. Our cultural forgetting of the meaning of marriage has already had too many sad consequences for children and adults (not least for their moral development).
Whether we wish to prevent the judicial imposition of gay marriage for procedural or substantive reasons, it seems clear that the only way to do so is by constitutional amendment. And while we do not carry a brief for every word and comma in it, the proposed Federal Marriage Amendment seems to do the job well. It reads: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.” The first sentence of the amendment would ban gay marriage. The second sentence would bar judges from granting legal privileges to same-sex couples (or groups), but allow state legislatures to make their own decisions in the matter.
Some Republican lawmakers would modify the amendment to focus more narrowly on blocking judicial abuse. In effect they would strike the first sentence. Other conservatives want to be more ambitious. They would have the amendment ban all kinds of civil unions, domestic partnerships, and other weakenings of marriage, period, whether reached by judicial fiat or democratic deliberation. We have no objection in principle to either type of change. Our tentative political judgment is that nothing weaker than the proposed amendment can galvanize support, and nothing stronger can clear the high hurdles that the Constitution sets for amendments.
Conservative politicians have in the past embraced any number of somewhat frivolous constitutional amendments. The flag-burning amendment comes to mind. But conservatives retain a healthy resistance to fiddling with our basic political document. Judges have, unfortunately, displayed no such resistance in recent decades. On an issue where the stakes could hardly be higher, they need to be resisted. A constitutional amendment is the way to resist.