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The 28th Amendment
It is time to protect marriage, and democracy, in America--Defense of Marriage Act may be in jeopardy.


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EDITOR’S NOTE: This article appeared in the July 23, 2001, issue of National Review.

Marriage is so central to the well-being of children-and society as a whole-that it was, until recently, difficult to imagine that it might be necessary to mount a national political campaign to protect the institution from radical redefinition. Yet today it can scarcely be denied that such a campaign is needed.

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Everybody knows that marriage is in trouble. The rise of divorce, illegitimacy, and cohabitation have all taken a toll. If the institution of marriage in our society is to be restored to good health, a reversal of trends and tendencies in all of these areas is required. Still, there is something unique in the threat posed by the movement for “same-sex marriage.”

At the core of the traditional understanding of marriage in our society is a principled commitment to monogamy and fidelity. Marriage, as embodied in our customs, laws, and public policies, is intelligible and defensible as a one-flesh union whose character and value give a man and a woman moral reasons (going beyond mere subjective preferences or sentimental motivations) to pledge sexual exclusivity, fidelity, and permanence of commitment. Yet any argument for revising our law to treat homosexual relations as marital will implicitly do what clearheaded and honest proponents of “same-sex marriage” explicitly acknowledge: It will deny that there are such moral reasons. Any such argument would have to treat marriage as a purely private matter designed solely to satisfy the desires of the “married” parties. If that is the case, there is no principled reason marriage need imply exclusivity, fidelity, permanence, or even a limit of two people.

Thoughtful people on both sides of the debate recognize this. It is evident, then, that legal recognition of same-sex marriages, far from making marriage more widely available (as well-intentioned but misguided conservative advocates of same-sex marriage say they want to do), would in effect abolish the institution, by collapsing the moral principles at its foundation.

So while it is true, as Bill Bennett among others has acknowledged, that marriage in the past 35 years or so has been damaged more severely by heterosexual immorality and irresponsibility than by homosexual activism, it is also true that same-sex marriage, were it to be instituted, would strike a blow against the institution more fundamental and definitive even than the disastrous policy of “no-fault” divorce.

It is noteworthy that proponents of same-sex marriage have sought to change public policy through judicial decree. Where they have won, they have won through the courts. Where the issue has been settled in the court of public opinion, they have lost. The lesson is clear: If the institution of marriage is to be preserved, a campaign to settle the issue democratically at the national level must be mounted-and quickly.

At the time the U.S. Constitution was adopted, it was taken for granted that marriage is the union of a man and a woman ordered to the rearing of children in circumstances conducive to moral uprightness. Its legal incidents and civil effects were part of the common law and regulated by the states. There was no need at the time for marriage to be expressly defined or protected by federal law or the Constitution. Consequently, the word “marriage” does not appear in the Constitution (nor, for that matter, does the word “family”). Our forefathers shared the consensus of humanity, which viewed marriage as a union between sexually complementary persons-that is, persons of opposite sexes. The common law that we inherited from England was clear about marriage as the union of man and woman: “Marriage . . . includes the reciprocal duties of husband and wife.”

Only in the last decade has our country’s time-honored recognition that marriage is, in its very essence, the union of male and female come under attack in the courts. In the earliest phase of this campaign, activists tried to establish a right of marriage for same-sex partners through lawsuits in state courts premised on state constitutional guarantees. The strategy was to get some state supreme court to recognize same-sex marriage. Other states would then be compelled to recognize these “marriages,” because of the constitutional requirement that states extend “Full Faith and Credit” to one another’s “public Acts, Records, and judicial Proceedings.”

The supreme court of Hawaii, purporting to interpret the state constitution, went so far as to hold in 1993 that the state’s marriage law “discriminated on the basis of sex.” A lower court acting on its instructions then found the marriage law unconstitutional-but stayed its order pending appeal. In the end, though, the courts did not get the final say. In 1998, the people of Hawaii, by a very substantial majority (69 to 31 percent), enacted a state constitutional amendment affirming the heterosexual character of marriage. Hawaii’s same-sex marriage case had to be dismissed.

Undaunted, attorneys for homosexual activist groups continued to press the issue in other venues. In Alaska, a trial judge read that state’s constitution to include a fundamental right to “choose a life partner.” Again, the voters responded by backing a constitutional amendment defining marriage as the union of a man and a woman-by 68 to 32 percent. Other states, such as California, passed similar amendments by wide margins without even facing an immediate legal threat.

Having been stopped by the democratic process in Hawaii and Alaska, homosexual activists decided to press their legal case in a state where it is very difficult for voters to amend the state constitution: Vermont. On December 20, 1999, the Vermont supreme court decided that the Vermont constitution requires the state either to grant marriage licenses to same-sex couples or to give them all of the benefits of marriage. The Vermont legislature chose the latter response to this judicial dictate: It passed, and the governor signed, a “civil unions” law that amounts to same-sex marriage in all but name.

The Vermont law, which took effect on July 1, 2000, contained no residency requirements for entering into a civil union. In the first six months, over 1,500 couples entered into civil unions. Only 338 involved at least one Vermont resident. The vast majority of Vermont civil unions, then, have been entered into by non-Vermont couples. Some of them will surely file suit in their home states to demand legal recognition of their Vermont status.

There is still an obstacle in the activists’ path. The U.S. Constitution explicitly gives Congress the authority to make exceptions to the Full Faith and Credit Clause. So in 1996, Congress passed (and President Clinton signed, albeit reluctantly and without fanfare) the Defense of Marriage Act. That legislation defines marriage for purposes of federal law as the union of a man and a woman, and says that no state is required to recognize another state’s same-sex marriages (though it does not forbid states to create same-sex marriages or recognize out-of-state same-sex marriages or civil unions). Subsequently, 34 states have enacted laws that deny recognition to same-sex marriages granted out of state.

But activists are putting forward a number of theories to persuade judges to declare the Defense of Marriage Act, and the state acts, unconstitutional. They may well succeed. The same year the Defense of Marriage Act was passed, the U.S. Supreme Court handed down Romer v. Evans. The case concerned a Colorado constitutional amendment forbidding the state government or localities to pass “gay rights” laws. The Court concluded that the amendment could be explained only on the basis of irrational “animus” toward homosexuals. The Defense of Marriage Act could surely be characterized the same way by socially liberal federal judges.

There is also the prospect of same-sex marriage migrating from abroad. On April 1, 2001, the Netherlands became the first country in the world to recognize same-sex marriage as such. The law requires only one of the parties to be a resident of the Netherlands. Ordinarily, a marriage validly entered into anywhere is valid everywhere. Our country has a public-policy exception to this rule, which allows states with a policy against same-sex marriage to decline to recognize it; but this exception may not cover states that-like Massachusetts-haven’t enacted explicit bans on the importation of same-sex marriage. In addition, given the current culture of the American legal profession, there is good reason to expect that many American judges will eventually reason their way around the public-policy exception in favor of the legal arguments crafted for them by activist attorneys and other supporters of same-sex marriage.

The momentum of the movement to redefine and, in effect, abolish marriage has brought America to a crossroads. Evan Wolfson, former head of the marriage project at the Lambda Legal Defense and Education Fund, says he will file more lawsuits: “We have it within our reach to marry within five years.” The judicial assault on marriage is accelerating and encompassing every dimension of our legal system-state, federal, and international law.

The only sure safeguard against this assault is to use the ultimate democratic tool available to the American people: a constitutional amendment. Pro-marriage activists are inclined to back an amendment that would read: “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 simply states that marriage anywhere in the United States consists only of male-female couples. This would prevent any state from introducing same-sex marriage by, for example, recognizing a Dutch same-sex marriage. The name and substance of “marriage” is reserved to husband and wife alone.

The second sentence seeks to prevent the judicial abuse of statutory or constitutional law to force the extension of marriage to include non-marital relationships. The word “construed” indicates that the intention is to preclude a judge or executive-branch official from inferring a requirement of same-sex marriage, or something similar, from a state or federal law.

The expression “legal incidents” is intended to convey the consequences “either usually or naturally and inseparably” dependent upon marriage. The Supreme Court has called “incidents of marriage” those “government benefits (e.g., Social Security benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e.g., legitimization of children born out of wedlock)” that follow upon marital status. Another example would be the marital privilege against being forced to testify against one’s spouse.

The amendment would not prevent private corporations from treating same-sex couples as married couples for purposes of health-care benefits, nor the extension of hospital visitation privileges to same- sex partners. If a benefit is not made to depend on marriage, it can be applied more generally. What the amendment prevents is the automatic, across-the-board qualification of same-sex partners for whatever marital benefits happen to exist.

The Federal Marriage Amendment has a very narrow purpose. It seeks to prevent one very specific abuse of power by the courts, to make sure that on an issue of this importance, they don’t confer a victory on the Left that it has not won in a fair contest in the forum of democratic deliberation. The amendment is intended to return the debate over the legal status of marriage to the American people-where it belongs. This amendment would have prevented the Vermont supreme court from ordering the legislature to grant the benefits of marriage to same-sex couples, but would not prevent a fair democratic struggle to decide the question of civil unions one way or the other in Vermont or any other state.

Why, some will ask, should we not go further, and use constitutional amendment to settle the issue of civil unions once and for all at the national level? While the legal recognition of non-marital sexual acts and relationships undermines the institution of marriage and should be opposed, the actual threat of the imposition of same-sex marriage and civil unions comes from the courts, not the legislatures. The amendment is thus tailored to the threat at hand. Moreover, it does not depart from principles of federalism, under which family law is, for the most part, a state matter. State autonomy on family-law matters is preserved.

As a practical matter, the chances of passing a more comprehensive amendment are small. Moreover, some potential allies would perceive an amendment as offending democratic principles if it were to reach beyond the abuse of judicial power in this area. We should not fear the democratic resolution of the question of marriage. If we lose the people on this question, constitutional law will not save us.

If state and federal judges remain free to manufacture marriage law as they please, the prestige of liberal sexual ideology in the law schools and other elite sectors of our society will eventually overwhelm conventional democratic defenses. The only sure means of preserving the institution of marriage for future generations of Americans is a federal constitutional amendment protecting marriage as the union of a man and a woman.

Robert P. George is a professor at Princeton University.



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