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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In December, CBS News asked Americans the question: "Would you favor or oppose an amendment to the U.S. Constitution that would allow marriage only between a man and a woman?" Respondents favored a federal marriage amendment by 55 percent to 40 percent. By the end of February, support had grown and opposition had dropped. Americans favored a federal marriage amendment by 59 percent to 35 percent. Of the Democrats polled, 55 percent supported a federal marriage amendment.

Public opposition to same-sex marriage is intensifying. But opinion polls are one thing, votes are another. Is same-sex marriage an issue that can move votes? A special election for state senator in Massachusetts on March 2 holds a clue. Cheryl Jacques was vacating her seat to become president and executive director of the Human Rights Campaign, a lobby for lesbian, gay, bisexual, and transgender equal rights. Jacques wanted a trusted lieutenant to take over her seat. Yet even in a safe Democratic district in an overwhelmingly liberal state, the race was close, and voters crossed party lines to elect the Republican.

More fundamentally, "leaving it to the states" will advance the process of educating the American people in the idea that there is nothing special or important about marriage as we have always defined it--about preferring husbands and wives who can become fathers and mothers. It will further the process of persuading Americans that we don't need a shared marriage culture.

DOES A NATIONAL DEFINITION OF MARRIAGE violate the principles of federalism? Writing in the Atlantic Monthly, Jonathan Rauch makes the case for leaving the issue to the states: "Remember, all precedent leaves marriage to the states."

This commonly repeated cliché is simply untrue. In a series of decisions in the 1970s and '80s, the Supreme Court made marriage a federal issue, striking down many state laws regulating marriage and divorce. For example, in Zablocki v. Redhail, the Court ruled that it was unconstitutional for Wisconsin to require a man to be up to date in his child support before permitting him to remarry. A state has no right to require a person to live up to his marital obligations before taking on new ones. In Turner v. Safley, the Supreme Court ruled that a man who cannot fulfill any of the obligations of marriage (because he is incarcerated) still has the right to marry, state law to the contrary notwithstanding.

Moreover, the question whether the basic legal definition of marriage is a national issue or a states' rights issue was tackled once before and settled, in the 19th century.

Why is monogamy both the legal and social norm in America? For one reason only: Between 1862 and 1887, Congress repeatedly passed laws designed to stamp out polygamy in U.S. territory. The lengths to which Congress went strike us now as extreme. But without decisive federal intervention, America today would have polygamy in some states and not in others.

In 1862, Congress passed the Morrill Act criminalizing bigamy. Under that law, no married person could "marry any other person, whether single or married, in a Territory of the United States," under penalty of a $500 fine or five years in prison. In 1874, responding to the difficulty of getting convictions in regions where people supported polygamy, Congress passed the Poland Act, transferring plural marriage cases from Mormon-controlled probate courts to the federal system. In 1882, Congress passed the Edmunds Act, which vacated the government in the Utah territory, created a five-man commission to oversee elections, and forbade any polygamist, past or present, to vote. By 1887, half the prison population in Utah territory were people charged with polygamy. That year, Congress passed the Edmunds-Tucker Act, which, partly to facilitate polygamy convictions, allowed wives to testify against husbands in court. By 1890, the Church of the Latter Day Saints threw in the towel, advising its members "to refrain from contracting any marriages forbidden by the law of the land."

Like it or not, the only reason monogamous marriage remains the law of the land in America is active federal intervention to protect the national definition of marriage. In the late 19th century, of course, Congress could count on the Supreme Court to uphold its authority. Today, to ensure a national definition of marriage requires a constitutional amendment. But there is nothing radical or unprecedented about the idea of a national definition of marriage.

There is, however, something wrong with leaving marriage to the states. It won't protect defense-of-marriage laws from being overturned by a Supreme Court already signaling its interest in affirming same-sex marriage as a civil right. And in states that adopt same-sex marriage as a civil right, it won't protect Christian and other traditional religious organizations from persecution in the public square if they teach the sanctity of marriage.

Leaving the definition of marriage to the states will amount to a repudiation of Congress's judgment in the 19th century that polygamous marriage is unacceptable in our national, common culture.

Leaving the matter to the states amounts to conceding that marriage is not a key social institution. It suggests that marriage is just one of many values issues about which states can disagree without affecting any truly national interest. Leaving it to the states lends public endorsement to the idea that the fragmentation of our marriage culture is no problem at all.

The reality is that there is going to be a national definition of marriage. The question for Congress is whether it will be the novel definition now being foisted upon us by the courts, or the one affirmed by the vast majority of the American people.

Maggie Gallagher is president of the Institute for Marriage and Public Policy (www.marriagedebate.com).