A few points about gay marriage and the Constitution:
1. State legislatures and Congress have always, and will always, legislate morality. What is a criminal code but a body of laws prohibiting and punishing all kinds of “personal” behavior considered adverse to the public good? Hence, laws prohibiting polygamy, sex with minors, incest, etc. Respecting polygamy, Congress passed statutes outlawing that practice throughout the mid- to late 1800’s — including jail terms and fines — which laws were upheld by federal courts. The fact that such conduct may have occurred in the privacy of one’s bedroom was of no consequence. That’s not to say that the moral authority to regulate behavior should be used in all situations, such as sodomy. In fact, even before the Supreme Court acted in Lawrence v. Texas, such state laws were being repealed and went unenforced — even in Lawrence.
Federal and state laws not only apply to “personal” relationships, but all kinds of “private activities” having nothing to do with marriage, sex, etc., but which have a moral basis. In fact, it’s difficult to imagine any set of laws not founded on moral judgments intended to promote or prohibit some behavior — from laws involving contracts and torts to anti-trust and civil rights laws.
2. Many liberals who reject the 10th amendment in support of expansive interpretations of the Commerce Clause and the Fifth and Fourteenth Amendments, for the purpose of evading the Constitution’s limitations on federal authority, are now embracing states’ rights for the sole purpose of defending a well-planned legal strategy of securing favorable state court decisions by forum shopping the gay marriage issue in places like Massachusetts. And their intention is for these decisions to percolate up to the federal court system, where the much abused Fourteenth Amendment will be used to uphold such marriages under the Equal Protection Clause. This has nothing to do with states’ rights, and everything to do with activist judges. Consequently, the movement to amend the Constitution.
3. Through their interpretations, judges amend the Constitution all the time. They do so without following the rather elaborate and publicly accountable process of securing a two-third’s vote in both houses, and a three-fourth’s vote of the states. They simply issue an opinion which, under the theory of judicial review, becomes the final say on the topic. It is odd, indeed, that those who endorse such a non-representative process, supported nowhere in the Constitution, find the formal amendment process so dangerous on a matter of such import to so many people. Moreover, an amendment in this case is intended to blunt a legal strategy that gives legal primacy to a handful of activist judges.
4. What kind of amendment should Congress consider and pass on to the states for possible ratification? The Senate today couldn’t agree. Republicans are said to be divided over whether the amendment should define marriage at the federal level, or leave the definition to the states. The question for each conservative is which among conflicting principles should dictate — among them, traditional marriage, federalism, and judicial restraint. Let me suggest that federalism is a stalking horse for many on the left who know full well that the final determination will be made by the U.S. Supreme Court. In fact, they oppose an amendment defining marriage not because of their concern about the Constitution itself, and certainly not because of their allegiance to the doctrine of federalism, but because it would remove the decision from the Court and leave it with Congress and the state legislatures.
Most libertarians (who are not necessarily advocates of federalism) and some conservatives are sincerely attracted to the federalism argument. But the legal approach in which this issue has been litigated, and which has set the legal foundation on which it will be decided, makes such a position untenable.