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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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For example, instead of directly forbidding same-sex partners to marry, a federal marriage privilege protection measure would make it a criminal offense for state or local officials acting "under color of law" to issue a marriage license to persons of the same sex. Constitutional authority to pass this measure comes from the Fourteenth Amendment, buttressed by the Republican Guarantee clause (S. 4 of Art. IV) and the Necessary and Proper clause (par. 18, S. 8 of Art. I).

To appreciate this, consider the nature of the marriage relationship as understood from antiquity through centuries of thought and experience that shaped its meaning in American legal practice: The marriage union is a relationship characterized by privilege. Each spouse is recognized to have a privilege "to have and to hold" the person of the other. The privilege is exclusive: No one else may claim a right to join that union.

The marriage privilege is prior to government in the sense the Declaration of Independence speaks of regarding inalienable rights: "among these [implying there are others] are life, liberty, and the pursuit of happiness." Families exist by nature to perpetuate the species, or natural rights themselves would disappear. Government's purpose is not to dispense rights but to "secure" rights created by "Nature and Nature's God." To do this, governments enforce laws placing limits on how people exercise their natural rights and privileges. For instance, the rights to liberty and life can be constrained by jailing or executing criminals. The marriage privilege also must be regulated because the family is central to the well-being of society. No nation has ever claimed that a person should be permitted to marry anyone he or she chooses. The legal requirement of a marriage license grants a social privilege par excellence, a relationship to be enjoyed only by specific persons permitted and protected by law.

So deeply embedded in our society is this privilege that a thick network of legal rights and duties has been woven to reinforce it--over a thousand federal and 400 state laws by a rough count from the General Accounting Office. They comprehend everything from parents' duties to their children, adoption, estates and inheritances, survivor benefits, immigration rights, domestic violence protections, and divorce settlements, to customs claims, lease renewals, tax laws, judicial evidentiary immunity, and many other areas. No other privileged relationship has been so marked out by legal benefits and obligations to prove its centrality for free society.

As Stanley Kurtz demonstrated in Beyond Gay Marriage, the movement to redefine marriage to include homosexual unions brings in its wake demands to legalize polygamy, polyamory (group marriages), triple parenting, incestuous partnerships, and worse. Expanding marriage to include same-sex partnerships implies the abolition of the marriage privilege, as proponents of these various arrangements clearly understand. Andrew Sullivan and other gay activists are angered by what they say is the equation of gay marriage with other unnatural unions, but no one has claimed these differing sexual arrangement are the same. The real issue in common among these relationships is the principle that is supposed to legitimize gay marriage: personal affectional preference. But marriage is not capable of being radically redefined. Reason itself, fixed in the nature of the relationship, imposes limits. Transcend the limits, and, as Kurtz shows, the marriage union dissolves as a social and legal institution.

For most of its history, the Supreme Court held that traditional marriage forms a family unit which is the fundamental building block of free society. The forms of self-government could not survive without it, so any weakening of the marriage privilege undermines free government. To preserve republicanism, the federal government is obligated (Art. IV, S. 4) to strengthen its basis in the marriage union.

The states' power to enact marriage laws presupposes the purpose of securing the marriage privilege, not weakening it. By the terms of the Fourteenth Amendment, the states may not do so. Here is why.