A commentator recently ran his mind over the gay-marriage issue. He is opposed to same-sex marriage but squeamish about a constitutional amendment. Amendments, he said, were too radical an approach to the problem. This attitude provokes thought about the Constitution, framed other than on the difficulty or the undesirability of amendments.
The Constitution became, over the years following the rugged debate over its ratification, something more merely than an organizational table of rules and regulations. People taking public office in America bind themselves to defend the Constitution, which is correct, even as it is correct to defend the law.
But of course laws change, and the law is different in different parts of the country. There is a solemnity that attaches to an oath to defend the Constitution, and the reason for it is that, over generations–in particular after the Civil War–the Constitution achieved a kind of moral authority that went beyond merely the accumulation of laws and traditions. To amend the Constitution is thought by many to tamper with a holy covenant. The only people who can do that are the priests. There are nine of them, and they sit on the Supreme Court. The way to amend the Constitution, it is accepted by most of our clerisy, is to interpret existing language in such a way as to accommodate the desired reform.
The Supreme Judicial Court of Massachusetts wonderfully exemplifies the point. Four of its members ruled, in their now-historic decision last November, that the practice in the state, in the matter of marriage, was not congruent with the equal-protection clause of the Massachusetts Constitution, which reflects principles inherent in the United States Constitution. The man-from-Mars reaction to that decision would have been: You must be crazy! You are telling us that the Constitution prohibits special civil sanctions applying to married people? That reaction to the court decision is absolutely healthy, but it no longer works. Because the Constitution is held to be venerable, and its reaches, undeniable. In the scheme of things, the Massachusetts court is telling the legislature of the state that a failure to “marry” same-sex couples violates the Constitution of the Commonwealth of Massachusetts, and by extension the Constitution of the United States.
So what is an aroused public supposed to do?
At a local level, one needs to amend the constitution of Massachusetts to the desired effect: to specify that a “marriage,” as contracted under the state’s law, is a union between a man and a woman.
It is in motion to enact such an amendment, but the difficulties are manifest. Just to begin with, it would not be until 2006 that the reform could be done. That leaves two years in which same-sex unions will be sanctioned. And to undo these would raise constitutional questions and questions, also, of justice. If two men decide to contract a marriage under the revised understanding in Massachusetts, and two years later they are advised that the status quo ante has been reimposed, how, if we intend to do the right and fair thing, can the privileges they contracted be taken from them?
We are reaping a whirlwind, and direct intervention in the holy tabernacle of the United States Constitution is eminently justified. Either that, or we will simply be surrendering the evolution of the law into the hands of the judiciary. An interesting argument could be made to the effect that rule by justices might be an improvement on rule by congressmen and state legislators. Of course we are not attempting to make any such reassignment of power when we balk at a constitutional amendment, though in fact we are.
There is nothing in sight, given the decision of the Massachusetts court, and the decision of the U.S. Supreme Court last June overturning the Texas sodomy law, to curb the evolution of “marriage” to signify simply an affectionate relationship between two or more people, with cross commitments of one kind or another. The rules for entering into such a union–man-man, woman-woman, widowed sisters, father and son–might differ here and there, so long as those differences were not held to violate the equal-protection clause of the Constitution, or other of its provisions. In the absence of an amendment, the fight is simply abandoned, and Darwinian mutations are, if not exactly encouraged, nevertheless indulged.
To argue that a constitutional amendment is radical, while acquiescence in the anarchy of the Massachusetts court is less than that, staggers the mind. It has become easier to amend the Sermon on the Mount than the Constitution, and it is strange and awful that passivity is urged in a republic of free people.