The time has come to pass the proposed Federal Marriage Amendment (FMA). Admittedly, I was an early critic of the FMA; yet as I have carefully considered this for many months, and despite my initial reluctance, I have come to regard the amendment as absolutely necessary.
Under the United States Constitution, the regulation of marriage was not given to the national government to control. The Founders left that to the states, through ordinary processes of self-government at the local level. This is part of the “federalism” principle. Because of federalism in family law, the states have been able to adopt different family policies, and that has provided diversity, allowed experimentation, and fostered pluralism in our nation’s family laws.
The federalism principle coincides well with another fundamental tenet of the American legal system–that “governments derive their just powers from the consent of the governed.” That means that the people subject to the laws are the ones who should make the laws, formulating especially the fundamental principles (constitutional rules) by which they are governed.
Additionally, our Constitution rests on certain core principles. One of those cornerstone principles has, for more than 200 years, been respect for and special legal protection of the unique institution of conjugal marriage (the contractual, lifelong union of a man and woman). Some historians call it “republican marriage” because, in the Founding Era, it was understood to be the basic social unit necessary to inculcate civic virtue and nurture the individual and social values essential for the survival of a republican (representative democracy) form of government.
The same-sex marriage movement therefore threatens the core institution of marriage, challenges these essential constitutional principles, and imperils our very system of government.
While a healthy society can tolerate some deviation from its foundational institutions (such as conjugal marriage), there must be a “critical mass” in society that maintains, respects, and protects those institutions. Federalism accommodates diversity while protecting this critical mass. Thus, some variation from even basic institutions like marriage might be accommodated by the extraordinary strength of our constitutional system–as long as the principle of federalism is respected.
Regrettably, activists demanding same-sex unions also repudiate federalism. They defy and disrespect democratic processes.
Recent developments have created a serious threat to all aspects of the American way of life. For example, four years ago, the Vermont Supreme Court in the Baker case held that same-sex couples must be given the same legal status and rights as married couples. Three months ago the Massachusetts Supreme Judicial Court in the Goodridge case declared that allowing only male-female couples to marry was “irrational,” and a violation of the state constitution. This week, the same four judges decreed in Opinion of the Justices to the Senate that even the creation of radical new “civil unions” giving same-sex couples all of the legal benefits of marriage under Massachusetts law is not enough; gay and lesbian couples must also be allowed to marry.
These rulings violate the consent-of-the-governed principle. Those judges seized the people’s right to govern themselves by redefining the fundamental institution of marriage, and imposed their own radical policy preferences upon the people under the guise of interpreting the state constitution. (These courts also tried to coerce compliant legislatures to endorse their ruling.) These decisions demean the institution of marriage, and disregard the basic right of the people to define their own basic social institutions.
Similarly, the U.S. Supreme Court decision in Lawrence v. Texas, labeling as “irrational” and unconstitutional laws that prohibit sodomy, underscores the dangerous propensity and growing trend of many judges to substitute their own subjective value preferences for those of the elected representatives of the people, and to nationalize by judicial decree issues that are best regulated through democratic processes at the local level to reflect local circumstances and social mores. The legal analysis in all of these decisions is as flawed as it is arrogant.
California voters, for example, overwhelmingly (61-39) passed in 2001 Proposition 22, which limited marriage to the union of one man and one woman. Less than three years later, radical politicians in the state legislature gave all of the rights and benefits of marriage to same-sex couples with another name (Domestic Partnership). The will of the people was blatantly disregarded.
Same-sex unions created in Vermont are already being forcibly exported to other states–by couples who enter into such unions in Vermont, and then demand that other states recognize and accept the “importation” of those unions and legal rights. Advocates of same-sex unions argue that citizens and lawmakers in all states must recognize and accept same-sex unions entered into in any state. That position violates federalism, and the history of the Full Faith and Credit clause, and was overwhelmingly rejected by Congress when it passed the Defense of Marriage Act (DOMA) in 1996. Yet some judges have endorsed such specious arguments, and courts in at least two states have already recognized civil unions imported from Vermont. A federal judge in Nebraska even amazingly suggested that a state constitutional amendment barring same-sex marriage and civil unions violated the “Bill of Attainder” clause!
The time has come to take effective legal action before these accelerating trends and pressures grow so large and acquire so much influence that they do irreparable damage to marriage, to federalism, and to self-government. While I am reluctant to advocate amending the Constitution of the United States, especially in an area dealing with family law I am now convinced that such an amendment may be the only effective remedy to head off renegade judges who are using their judicial power to impose their personal pro-same-sex-unions preferences, to restrain irresponsible politicians willing to pander to gay activists, to reestablish the principles of federalism and self-government, and to revive public respect for the unparalleled benefits that conjugal marriage provides to individuals, families, and society. The issue is not partisan or ideological. It is only about protecting our children, our families, the institution of marriage, and our core national principles.
The Federal Marriage Amendment introduced in Congress takes a prudent and reasonable approach to the problem. It abolishes same-sex marriage in the United States, and prohibits judges from legalizing other forms of same-sex unions, while preserving both federalism in family law and local self-government by protecting the authority of the legislatures to establish state policy regarding whether (and to what extent) to give some legal benefits to unmarried–including same-sex–couples.
It is time to demand prompt passage of the Federal Marriage Amendment, so that it can preserve our most cherished ideals, currently under siege.
–Lynn D. Wardle is a professor of law at Brigham Young University.