Politics & Policy

Like It or Not…

The marriage amendment is the democratic way.

“I think it is inevitable now.”

–Patricia Logue, LAMBDA Legal Defense Fund, on nationalizing same-sex marriage.

In 1996, Senator John Kerry was one of only 14 senators, all of them Democrats, to oppose passage of the Defense of Marriage Act (DOMA). The bill was unnecessary, he said, since “no State has adopted same-sex marriage.” Well, the future is now, and Sen. Kerry’s own state of Massachusetts is leading the way. Last November, in its Goodridge v. Dept. of Public Health decision, the Supreme Judicial Court of Massachusetts declared same-sex marriage to be the policy of the commonwealth. Today, same-sex-married couples live in 46 states and activists are implementing a well-funded, multifaceted, and highly coordinated legal assault on traditional marriage. The inescapable conclusion is that, absent an amendment to the U.S. Constitution, same-sex marriage is coming whether you like it or not.

Next week, the Senate will vote on a Federal Marriage Amendment. In a series of hearings in several different Senate committees, witness after witness confirmed what the American people already know. Traditional marriage is the single best arrangement for raising children and forming citizens. For that reason, government may certainly select this time-proven institution for special preference and protection and a high burden exists for those who would introduce radical and untested substitutes. And it should be the American people who make such choices, not judges imposing their own preferences without the people’s consent.

The Legal Road to Same-Sex Marriage

“[W]e need well chosen, carefully mounted cases.”

–Evan Wolfson, executive director, Freedom to Marry

When allowed to choose, legislatures protect marriage rather than dismantle it. Therefore, advocates of same-sex marriage resort to strategies involving the executive or judicial branches. In states such as California, Oregon, New York, and New Mexico, rogue local officials have simply defied their own state marriage laws and married thousands of same-sex couples. While saying that New York law does not allow same-marriages, state attorney general Eliot Spitzer has promised that he will nonetheless recognize same-sex marriages from other states.

But in most cases, advocates turn to the courts to impose their preferred policies on their fellow citizens, and their legal war against traditional marriage has at least five fronts. First, nearly a dozen states so far face state constitutional challenges to their traditional laws limiting marriage to a man and a woman. It doesn’t matter whether the people have expressed themselves directly or through their legislatures. In California, even though 60 percent of voters recently approved a statewide ballot initiative to maintain traditional marriage, the California supreme court is now considering the constitutionality of that democratic action. In Nebraska, the American Civil Liberties Union has challenged a duly passed state constitutional amendment that defines marriage as between a man and a woman.

Second, there will likely be a federal court challenge to state marriage laws, similar to the challenges that have eliminated state laws against certain sexual activity.

Third, a federal lawsuit in Florida is challenging DOMA’s traditional definition of marriage for purposes of federal benefits.

Fourth, same-sex couples from across America who obtained marriage licenses in places such as San Francisco and Massachusetts have gone home and will try to change their home-state’s policy by forcing it to recognize their union. They will cite the Constitution’s requirement that states give “full faith and credit” to other states’ judicial proceedings.

And fifth, look for lawsuits should states refuse to recognize these imported unions by citing their own opposition to same-sex marriage or DOMA’s protection against recognizing non-traditional unions from other states.

Most Americans probably assume they and their elected representatives can continue making policy decisions about marriage as they have in the past. After all, 40 states have recently taken some step to further protect marriage. Not surprisingly, the popular response to Goodridge and its aftermath resembles the decision itself: confused and conflicted. Americans clearly support traditional marriage, but do not readily see how a court decision in Massachusetts affects them in Nebraska, Arizona, or West Virginia. While the American people should be able to protect marriage through ordinary legislation, the multi-front legal assault is poised to strip away this right to self-government. The only solution left is to amend the United States Constitution.

The Supposedly Conservative Case Against an Amendment

This conclusion has been challenged by a few conservative-sounding arguments. Coming as they do primarily from legislators and other advocates who not only tolerate, but actually embrace, repeated judicial amendments to the Constitution, this sudden resistance to popular amendments must be taken with at least a grain of salt.

Some say that the Constitution, which has seen only 27 amendments in 217 years, should not be tinkered with. Patrick Guerriero of the Log Cabin Republicans insists that we should not “ignore the important business pending before the United States Senate in order to play politics with our nation’s founding document.” Apart from the fact that the Senate is indeed handling the other important business, this argument begs questions rather than answers them. Activist lawyers and judges have forced this issue onto the national agenda. It isn’t “playing politics” with the Constitution when an amendment has become the only available means of addressing this crisis.

Next, we hear from newly baptized federalists in the Democratic party. Senator Russ Feingold, for example, argues that “states should…be permitted to handle this issue as their citizens see fit…in accord with the founding principles of our nation.” While that is the way states addressed issues such as marriage policy in the past, the legal assault on marriage will deny this right to the states. And if the full-faith-and-credit strategy works, the Supreme Judicial Court of Massachusetts will ultimately have determined this issue for citizens of non-consenting states, hardly a move respectful of federalism. Democrats, who rarely meet an expansion of national power they don’t like, must know that by opposing a constitutional amendment to protect marriage, judges will continue imposing same-sex marriage over the will of the people.

Finally, the organized opponents of the Federal Marriage Amendment (FMA) contend that it is premature. After all, they say, the Defense of Marriage Act (DOMA), which protects states from having same-sex marriage imposed by the judges of other states, remains the law of the land. Senator Edward Kennedy, also of Massachusetts, claims that “no state will be bound by the rulings or laws on same-sex marriages in any other state.” Senator Kennedy is another who opposed DOMA but now claims it is sufficient. He and other advocates of same-sex marriage also argue, however, that the very precedents supposedly protecting states’ ability to set their own marriage policy should be struck down in the courts.

These arguments, and others likely invented in the future, are all designed to let the clock run out. By preventing any substantive protection for marriage, advocates of radical changes in family structure hope to buy time for the legal warriors to gain more ground. By that time, especially should the U.S. Supreme Court rule that same-sex marriage is the law of the land, these same advocates will switch gears and oppose an amendment because it would take away the “right” created by judicial fiat.

After Goodridge, which itself came on the heels of the U.S. Supreme Court declaring a constitutional right to individual sexual autonomy, the choice is no longer between amending the Constitution or leaving this issue to the states. The only choice is between popular resolution of the effort to protect traditional marriage or judicial resolution of this question in favor of same-sex marriage. In the face of this threat, it is flatly irresponsible for elected officials, sworn to uphold the Constitution, to sit idly by as courts corrupt our national charter and advance a social experiment explicitly rejected in state after state, and in every region of the country.

DOMA’s False Sense of Security

“DOMA does violence to the spirit and letter of the Constitution.”–Senator John Kerry

The Advocate,” September 3, 1996

“The Defense of Marriage Act is the law of the land today.”

–Senator John Kerry, February 26, 2004

The very people who said in 1996 that DOMA is unconstitutional tell us today that DOMA is good law, solid enough to protect marriage without amending the Constitution. While this legislative protection should be enough, recent court rulings and other developments have convinced most analysts–either grudgingly or enthusiastically–that the DOMA solution will not last.

States such as Louisiana, South Dakota, West Virginia, and Nebraska have all acted to protect traditional marriage, but each of those states now has same-sex resident couples who were married in another state. Will those marriages be recognized or dissolved? DOMA sought to provide the states with a blanket right to refuse recognition of same-sex unions. The Goodridge decision, however, exposes its potential deficiencies. First, a court could conclude that, even though the Constitution gives Congress a role, it may not go as far as it did in DOMA. When DOMA was passed, Harvard law professor Laurence Tribe expressed the “unequivocal” conclusion that “Congress possesses no power under any provision of the Constitution to legislate [as it does in DOMA] any such categorical exemption from the Full Faith and Credit Clause of Article IV.”

Second, without DOMA, states will have to justify their refusal to recognize same-sex marriages performed elsewhere. On this point, the deck is already stacked against them. In Lawrence v. Texas, the Supreme Court found that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” The more fundamental the choice or “right,” the more significant the government’s reason must be to limit it. Several years earlier, in Romer v. Evans, the justices had already concluded that denying absolute equality to homosexuals is merely “irrational animus” toward that group.

The Goodridge judges cited these precedents when they imposed same-sex marriage on the people of Massachusetts. With DOMA likely to be overturned, the Supreme Court will have no obstacles to imposing this policy experiment on the people of every state. If the American people are to exercise their right to choose on this matter, a constitutional amendment is absolutely necessary.

Maintaining the Peoples’ Constitution

“The candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers.”

–Abraham Lincoln, March 4, 1861

To permit a handful of liberal judges to force this radical change on the entire nation is wholly inconsistent with the right of people to govern themselves. This debate over same-sex marriage is fundamentally a question of who decides important matters of public policy in a constitutional democracy. Judges who usurp the role of legislatures by imposing their preferred policies on the people dramatically undermine democracy’s vitality and legitimacy. I fear that we have lost sight of this fundamental principle.

As a senator, my oath of office requires me to defend the Constitution and the system of government it established. That oath means supporting the only solution to this crisis that threatens to undermine not only the vital institution of marriage, but the fundamentals of democracy as well. Protecting marriage requires amending the U.S. Constitution because we simply cannot wait for, or tolerate, further judicial corruption of both marriage and the Constitution. As our experiences with abortion, criminal rights, and religious liberty demonstrate, it is nearly impossible to correct Supreme Court decisions once made. “We the people” established the Constitution, but if we leave this issue to the courts, same-sex marriage will be here to stay whether we like it or not.

Our opponents’ objection that the Constitution has always been amended to extend rights tells only half the story. The Constitution’s amendments have generally served to extend the right of citizens to govern themselves, and to be able to make final decisions on issues such as marriage. The people in the states have already spoken on this issue, and the FMA will protect their fundamental right to democratic self-government–a right being eroded by an unaccountable judiciary.

For a simple and compelling reason, traditional marriage has been the norm in every political community for 5,000 years. Society has an interest in the future generations created by men and women. Decoupling procreation from marriage in order to make some people feel more accepted denies the very purpose of marriage itself. And such a radical transformation should not be imposed by judges upon people who would not choose it for themselves. Yet absent a constitutional amendment, that is precisely what we face.

The Honorable Orrin G. Hatch is a Republican senator to the United States Senate from Utah. Senator Hatch is chairman of the Senate Judiciary Committee.

Orrin Hatch — Orrin G. Hatch is the chairman emeritus of the Orrin G. Hatch Foundation. A Utah Republican, he served on the Senate Judiciary Committee from 1977–2019.


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