For the Marriage Amendment
From the February 23, 2004, issue: The case for a federal marriage amendment.
IN AN ACT OF ASTONISHING SELF-RIGHTEOUSNESS and self-congratulation, the Massachusetts Supreme Judicial Court has forced the question of marriage upon the entire United States.
A dozen legal battles stand between the Massachusetts court's dictate for one state and the legal redefinition of marriage in the rest of the nation. Each of these battles is important, and each must be fought. But they are, to a large degree, merely holding actions and last-ditch attempts to use some courts to limit other courts. Short of an all-out balance-of-powers fight between the branches of the Massachusetts state government, there will be legal same-sex marriages in the United States in three months--and directly afterward, we will have court cases in every other state demanding recognition of Massachusetts's licenses. Judicially ordered homosexual marriage has arrived for the entire nation, however much Americans might have hoped to avoid the question, and immediate intervention at the highest level of national law is necessary if we want to stop it.
"If judges insist on forcing their arbitrary will upon the people," President Bush declared in his State of the Union address, "the only alternative left to the people would be the constitutional process." Judges in Massachusetts have now insisted, and the only serious alternative is an amendment to the United States Constitution defining marriage as the legally recognized relation of a man and a woman and withdrawing from courts the power to expand that definition to other human relations. The Federal Marriage Amendment currently before Congress accomplishes both these tasks. Strong presidential and legislative leadership will be required to see it passed and sent to the states for approval. The time for that leadership is now.
In its entirety, the amendment reads: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor State or Federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."
Some opponents of homosexual marriage have objected that the amendment is too weak and the first sentence purely verbal, doing nothing to preserve the actual institution of marriage. But when the assault on marriage is definitional in its essence--when courts are forcing legal recognition of homosexual unions by redefining the word "marriage," as though by calling a cat a bird they could make it fly--the correct response is, in fact, a definition. The framers of the Constitution did not envision that the nation's judges would need instruction in the meaning of the word "marriage," but since they do, an amendment is necessary to give it to them.
Meanwhile, some supporters of homosexual marriage have argued that the amendment's second sentence bans civil unions and prohibits state legislatures from granting privileges to any human relation other than marriage. This is manifestly wrong: Every sponsor of the bill is on record as denying it--and conservative critics are vociferating against the amendment precisely because it doesn't outlaw civil unions. The second sentence is directed at courts, stripping from them the power to compel homosexual marriage by appeal to other constitutional provisions. Insofar as the amendment affects legislatures, it merely requires them to specify the benefits they wish to give to relationships outside marriage--which is what civil-union legislation ought to do in the first place.
Homosexual marriage is not a "wedge issue" being pushed for electoral purposes by Republicans. Indeed, the political advantage is not entirely clear. If activists convince the media to paint the Federal Marriage Amendment as prejudice against homosexuals, and if Democratic candidates are allowed to dodge the issue, Republicans could find themselves injured by the fight during the fall election.
But what choice is there? We have a national issue now, forced upon us by the judicial will of the Massachusetts high court. In the absence of a national reply, the activists will simply keep pushing--as proved by San Francisco's illegal granting of marriage licenses to homosexuals last week, solely to create cases to take to court. This issue must come before the people themselves, and when courts cast their political preferences as constitutional law, only a constitutional amendment can answer them.
--William Kristol and Joseph Bottum