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The Federal Marriage Amendment Is Hopeless

But federal law can succeed in protecting marriage where a constitutional amendment is destined to fail.

11:00 PM, Nov 18, 2003 • By DENNIS TETI
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THE MASSACHUSETTS SUPREME COURT has legalized same-sex marriage for the first time in this country. Most suspect the U.S. Supreme Court will throw a blanket of federal constitutional protection around this precedent.

Faced with the judicial deconstruction of marriage, angry conservative spokesmen and panicky lawmakers have rushed to embrace the Federal Marriage Amendment (FMA), a constitutional amendment to ban homosexual unions. These well-intentioned religious and pro-family leaders believe the high court will strike down anything less imposing. But trying to change the Constitution to resolve a fundamental social conflict is a deeply mistaken strategy. Not only will it almost certainly fail to be ratified; it will end up enshrining these "marriages."

There must be a more deliberate response. For three years President Bush has been saying that he believes in traditional marriage between a man and a woman. At his press conference following the Lawrence v. Texas anti-sodomy decision, he suggested that the administration is considering alternatives to a constitutional amendment. With firm leadership, the Republican majority in Congress could enact legislation right now to close the door on unisex marriages before the Supreme Court rules.

THE SLIM POPULAR MAJORITY now in opposition to "gay marriage" is not nearly sufficient to ratify a constitutional amendment. The Framers designed the constitutional amendment route to be difficult. Two-thirds of each house of Congress must first approve the amendment language, which then must be ratified by legislatures in at least 38 states--usually within seven years. (The alternative procedure, a constitutional convention, has never been tried.)

If every Republican senator voted for the FMA, 16 Democrats would have to be found to support it. In the House some 60 Democratic votes would be needed in addition to a unanimous Republican vote.

If some political miracle allowed the FMA to pass Congress and escape to the states, a higher series of hurdles awaits. Any 13 state legislatures can defeat it by either taking no vote or rejecting it. It is theoretically possible for two percent of the American people, strategically distributed in 13 small states, to kill an amendment favored by the other 98 percent. A small, energized minority would have little trouble doing so.

BUT LOGISTICAL CHALLENGES ASIDE, proponents of a marriage amendment seriously misunderstand the Framers' intention concerning constitutional changes. The founding generation vigorously debated these procedures (e.g., Federalist Papers 43 and 85, and the anti-Federalist Old Whig Essay I). The same Framers who democratized national elections and legislative enactments designed the amendment process to be partly national and partly federal--requiring a consensus of states, not merely majoritarian/democratic. And they set it up to take a long time so that deliberation, not anger or passion, would control the outcome.

The history of using constitutional amendments to resolve basic social problems is daunting. Like opposition to homosexual unions, the movements to abolish slavery, alcoholic consumption, and polygamy were centered in Christian churches. The anti-slavery struggle took over 60 years to ratify the Thirteenth Amendment, and only after civil war forged a consensus of sorts. During those decades many federal laws were enacted to limit the growth of slavery. The temperance movement began in the 1820s but the first prohibition amendment was not introduced until 1876, after which they were proposed almost every year. An amendment was ratified in 1919 after 90 years of work, only to be repealed in 1933.

The social conflict most like gay marriage involved the Mormon practice of polygamy in the western territories. Americans overwhelmingly opposed plural marriage. The first Republican party platform in 1856 denounced polygamy and slavery as "twin relics of barbarism." President Grant proposed an anti-polygamy amendment in his 1875 State of the Union message, and for decades thereafter, amendments were introduced. Before World War I, 26 states had petitioned for a constitutional convention. Yet legal recognition of polygamy was crushed not by amendment but by a series of limited executive actions and federal laws that were sustained by the Supreme Court.

SOME CONSERVATIVES RESIST federal legislation on gay marriage because, they contend, family regulation belongs to the states, not the federal government. (Of course if these conservatives support FMA, they don't really object to the shift.) In fact the horse has been stolen from the barn. Lawrence v. Texas dragged same-sex marriage into the federal arena. If the Supreme Court blesses the Massachusetts decision, gay marriage will be nationalized to stay.