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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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MOST OF US KNOW the Fourteenth Amendment's Due Process and Equal Protection provisions. Constitutional jurisprudence is filled with cases involving state actions denying one or the other. In a landmark 1873 opinion known as Slaughter-House Cases, however, the Supreme Court refused to recognize the butchers' business in Louisiana as a federally protected "privilege" under the Amendment's Privileges or Immunities Clause. The Amendment had been ratified after the Civil War to allow the federal government to protect the civil rights of ex-slaves. The case had nothing to do with marriage as a "privilege." The consequence of Slaughter-House was to turn to the other great provisions to enforce civil rights and liberties.

Although the Court abandoned the Privileges or Immunities Clause after 1873, we are not without guidance as to what might be included. In a circuit court opinion in 1823, Supreme Court Justice Washington said that the privileges and immunities of state citizens "are, in their nature, fundamental; [they] have, at all times, been enjoyed by the citizens of the several states which compose this union, from the time of their becoming free, independent, and sovereign," adding that "it would perhaps be more tedious than difficult to enumerate" what they are. The privilege of marriage precisely fits this description, especially since it was always thought to be basic to society's well-being.

In a 1923 case called Meyers v. Nebraska, which struck down state laws forbidding foreign language courses in primary schools, the Supreme Court, referring to the Fourteenth Amendment, said: "the right of the individual . . . to marry . . . and generally to enjoy those privileges long recognized at common law [is] essential to the orderly pursuit of happiness by free men." Not only did the Meyers opinion infer that marriage is a protected "privilege," it cited Slaughter-House to support the inference.

Same-sex marriage proponents admit the traditional understanding of marriage as monogamous and heterosexual, which is why they call for it to be redefined. Of course, to stretch the limits of the marriage union beyond a man and a woman is by definition, a change in its nature. Those who assert that redefining marriage would be a good thing cannot also claim that redefinition would not change marriage as we have understood it: changing it is their whole purpose. But any fundamental state-imposed change would "abridge"--weaken or limit--the marriage privilege within the meaning of the Fourteenth Amendment. A new constitutional amendment would be needed to allow the states to redefine or abolish marriage. Short of that, the Fourteenth Amendment imposes on Congress the duty to defend the privileges of American citizens against state actions to change their meaning.

ENACTING A MARRIAGE PRIVILEGE PROTECTION STATUTE in the current Congress would give Republicans a significant advantage in next year's elections. Compared to the lengthy process of ratifying the FMA, they would have taken immediate action to protect traditional marriage. This would not stop gay marriage from being an issue in the election campaigns. Rather, it would bring the question to the forefront.

The long delay connected with getting an amendment through Congress would allow incumbents to obscure their position. Neither Republican nor Democratic lawmakers want to vote on divisive issues like gay marriage. Some in both parties would say they support traditional marriage, yet find a multitude of objections to the amendment: the idea of changing the Constitution, the need for more expert testimony, etc. Even now the amendment's sponsors don't agree with each other about the proposed text's meaning and whether it should be changed. Opponents will have a field day with the "vague" language. If President Bush took a leadership role, the marriage privilege protection statute could be brought to a vote before November 2004. Every senator and representative would be on record, and the party division would not be buried in platform statements.

If Republicans, supporting traditional marriage, keep the White House and increase their legislative advantage, important judicial consequences would follow. The late constitutional scholar Alexander Bickel taught that constitutional interpretation is a kind of colloquy among the three branches. When the judiciary veers too far from the common sense of the Constitution, the other branches open a conversation with the judges.

We badly need a colloquy like this today. Historical precedents suggest the justices might not disregard a clear assertion of legislative will on such a basic issue. Neither a weak "sense of Congress" resolution nor a fanciful constitutional amendment that will be dead on arrival can do much to advance this conversation. Enforceable law is Congress' authoritative means to voice its position. With an election mandate to protect the marriage privilege, Congress and the White House would give the high court incentives and an opportunity to rethink its agenda. Should the justices persist, the conflict will intensify, not go away. A constitutional crisis--much like the New Deal crisis--would be almost inevitable.

Those who favor a constitutional amendment to protect marriage object to ordinary legislation, claiming the Supreme Court will certainly strike down a federal statute. President Franklin Roosevelt gave this classic response to such arguments:

[There are] those who honestly believe the amendment process is the best and who would be willing to support a reasonable amendment if they could agree on one. To them I say: we cannot rely on an amendment as the immediate or only answer to our present difficulties. When the time comes for action, you will find that many of those who pretend to support you will sabotage any constructive amendment which is proposed. . . . Even if an amendment were passed, and even if in the years to come it were to be ratified, its meaning would depend upon the kind of justices who would be sitting on the Supreme Court bench. An amendment, like the rest of the Constitution, is what the justices say it is rather than what its framers or you might hope it is.

Changes in the Constitution never happen merely because voters are angry. The Framers designed the process to insure that momentary passions don't damage a Constitution that must endure for centuries. Amendments are possible when the political conflict is over and a consensus is established. Losing a fight over the FMA, which is virtually certain, will only give ammunition to those who would claim popular support for same-sex marriage. Enacting a marriage privilege protection law can advance the effort to forge a consensus that will preserve marriage and constitutional republicanism.

Dennis Teti is a writer who lives in Hyattsville, Maryland, who has taught political philosophy and constitutional law.