The Magazine

Latter Day Federalists

Why we need a national definition of marriage.

Mar 29, 2004, Vol. 9, No. 28 • By MAGGIE GALLAGHER
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This marriage norm is embedded in Jewish and Christian (not to mention Muslim and Hindu) thought. It is also embedded in human biology--not just the facts of reproduction, but the hard-wired realities of gender difference that marriage is designed to help bridge. This ancient and powerful conception of marriage, grounded equally in faith and reason, won't just fade away. If courts are determined to eliminate any difference in the legal treatment of unisex and opposite-sex couples, those same courts will have to take an increasingly activist role in enforcing the new marriage norms they are now unilaterally creating.

The courts may decide, say, that to promote the traditional definition of marriage is to engage in discrimination against people who choose alternative family forms. The courts may decide to punish the teaching of the old norm as a human rights violation. And here the analogy to Loving v. Virginia holds no comfort.

If favoring the traditional understanding of marriage is analogous to favoring racism, then churches, faith-based organizations, and schools that continue to teach that marriage is exclusively the union of a man and a woman will eventually face penalties in the public square. Yes, the First Amendment will protect their right to sit in a corner and preach what they like. But, as a group of five legal scholars recently noted in an opinion for the Massachusetts Catholic Conference, if the courts actually equate laws defining marriage as the union of husband and wife with laws barring interracial marriage, then single-sex marriage statutes seriously threaten the ability of organizations adhering to traditional marriage to hold broadcasting licenses, have their colleges accredited by public bodies, or secure tax-exempt status for their schools and charities.

The Massachusetts court that decided the Goodridge case last November, of course, has already held that the traditional view of marriage is irrational and therefore must be based on animus. But suppose the courts pull back. Suppose they develop a surprising new tolerance for traditional views. The result will still be a quite devastating fragmentation of our marriage culture. In post-Goodridge America, people will be viewed and treated as married in some states (or counties, or small suburban hamlets) but not in others. And the gap between religious marriage and civil marriage will widen to a chasm.

MARRIAGE IS A PRE-LIBERAL INSTITUTION, a hybrid that fits uncomfortably inside our existing intellectual frameworks. It is older than the U.S. Constitution, older than Locke, older than the Christian church. Government did not create marriage. One cannot call such a social institution into being merely by passing laws. Since government depends on religion as well as culture to help sustain the norms that make marriage an effective social institution, a widening gap between "religious marriage" and "civil marriage" is itself a destructive development.

And yet, in the midst of the utter fragmentation of our marriage culture, a growing number of Republican political leaders appear poised to abandon altogether the idea of a common marriage culture. Rather than defend marriage, they propose a procedural fight. Drawing in part on federalist and libertarian principles, they sally forth crying, "Leave it to the states!"

Thus, Senator Orrin Hatch has proposed a constitutional amendment that is said to be fast gaining ground among GOP senators. It reads: "Civil marriage in each state shall be defined by the legislature or the people thereof. Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman."

There are many problems with this language. Courts that have discovered a right to same-sex marriage in general commitments to due process or equal protection are no doubt capable of discovering that "the people" have a right to same-sex marriage. On its face, the Hatch language appears to overturn the federal Defense of Marriage Act, which defines marriage as the union of a man and woman for the purposes of federal law.

Some Republican support for "leaving it to the states" stems from the mistaken view that a procedural issue is a better political issue than marriage itself. But as the nationwide push for gay marriage becomes unavoidably obvious, Americans' support for a federal marriage amendment that defines marriage as the union of a man and a woman is growing fast.