The candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers.
--Abraham Lincoln, March 4, 1861
SENATE REPUBLICANS deserve credit for pushing this week for a vote on a constitutional amendment that would define marriage in the United States as consisting only of the union of a man and a woman. Whether they will get that vote is an open question. Under Senate rules, 60 votes likely will be needed to cut off debate in order for a vote on the amendment to occur. Those who count heads in the Senate tell us that as few as two Democrats may be willing to vote for cloture, as it is called, and as many as 12 Republicans may be prepared to vote against it. The votes for cloture might not even total 50.
Yet if you believe that the courts ought not to be irrevocably fixing policy upon such a vital question as what constitutes marriage, there is merit, especially in an election year, in determining just who is and who is not willing to vote on an amendment that would enable the people to decide whether they want to settle the issue as they choose. Which is to say, consistent with their conviction that marriage is what it always has been--only the union of a man and a woman.
As matters now stand, marriage defined as the union of any two people is the policy of only one government--the Commonwealth of Massachusetts. The policy was fixed by the Supreme Judicial Court of Massachusetts in a decision last November that ran roughshod over the legislature's constitutional authority. The federalist impulse in our shop says that maybe on the question of marriage nothing at all should be done--in which case a state would be allowed to go to hell in a handbasket, if that should be the desire of its judges, and the ruling is allowed to stand. We are reminded that states also can do the right thing, from our point of view, and in fact have. The people of Hawaii responded to their high court's decision implying a constitutional right of same-sex couples to marry by passing a constitutional amendment prohibiting such marriages. And the people of Alaska voted for a similar constitutional amendment in response to a lower-court judge's ruling announcing a right to same-sex marriage.
Nonetheless, it is now unlikely that the states will be able simply to do as they wish on the question of marriage. Under the Massachusetts Constitution, no amendment in response to the supreme judicial court's decision will be possible until 2006, and in the meantime there is no stopping same-sex nuptials, of which there have been thousands so far, including many from out of state. It is only a matter of time before some same-sex couples who have returned home file lawsuits pressing their states to recognize their unions.
A basis for their claim will be the federal Constitution's requirement that states give "full faith and credit" to other states' judicial proceedings. The federal Defense of Marriage Act of 1996 offers an authoritative interpretation of the "full faith and credit" clause designed to prevent the interstate transmission of same-sex marriage. But the Supreme Court has repeatedly told Congress that it lacks the power to do that, and there is no reason to think that the Court would change its mind.
The odds are strong, then, that same-sex marriage will travel via the federal courts to other states. There also remains a possibility that the Supreme Court itself might simply strike down the traditional definition of marriage. Recall that last summer in Lawrence v. Texas the Court, with Justice Anthony Kennedy writing, did not merely void the nation's sodomy laws. Kennedy also embraced an amorphous right to sexual liberty (untethered to constitutional text or history) that denies the historic right of the people to enact legislation based on their moral views. The Massachusetts Supreme Judicial Court, not incidentally, drew inspiration from Kennedy's Lawrence opinion.
The question facing the Senate and, for that matter, the House of Representatives, is whether federal judges should be allowed to decide the issue in the way they are likely to--or whether the American people should be given the opportunity to settle it through a constitutional amendment expressing their longstanding conviction about marriage. Even a failed cloture vote will give the country an idea of which senators understand--and which do not--that the definition of marriage is now an unavoidably national issue, and that, if marriage is to remain the union of a man and a woman, the issue will have to be addressed through a constitutional amendment.
--Terry Eastland, for the Editors