debate over the nature, purpose, and legal status of marriage has
emerged as a critical national issue, the resolution of which will
shape the future of our society and the course of constitutional
government in the United States.
series of significant judicial decisions has brought the issue of
homosexual "marriage" to the forefront of our nation's attention.
Last November, a 4-3 decision of the Massachusetts Supreme Judicial
Court declared that traditional marriage upholds persistent
prejudices and that couples of the same sex have a right to marry
in that state. Despite numerous efforts to block or delay the
Massachusetts court's controversial edict, the Commonwealth of
Massachusetts has been forced to issue marriage licenses to
same-sex couples since May 17.
These judicial decisions--as well as the
actions of local officials who, intentionally contrary to state
law, have issued thousands of fraudulent marriage licenses to
same-sex couples--seek to redefine the institution of marriage by
judicial fiat and affirm homosexual "marriage" as a fundamental
civil right that the federal government has a constitutional
obligation to secure nationwide.
Faced with such a concerted legal and
political effort to deconstruct and thereby undermine one of the
most basic institutions of civil society, policymakers must now
take immediate steps at both the state and federal levels to
protect marriage, prevent judicial usurpation, and uphold the rule
is happening is not a slight change in degree that merely extends
benefits or rights to a larger class, but a substantive change in
the essence of the institution. It does not expand marriage; it
alters its core meaning, for to redefine marriage so that it is not
intrinsically related to the relationship between fathers, mothers,
and children would sever the institution from its nature and
institution of traditional marriage can be protected through
actions taken in the following arenas.
Concerted efforts must be made at every level to educate
the public, policymakers, and political leaders generally about
marriage and current threats to the institution of marriage.
Many significant legal battles are yet to be fought at the
state and federal levels. Judicial decisions in Massachusetts and
other localities are but the opening moves in a long-term legal
strategy to impose homosexual "marriage" through the courts,
circumventing lawmakers and the people before they have an
opportunity to react through legislation or the electoral process.
Above and beyond defending existing state laws and legal precedents
that uphold traditional marriage, a primary objective of legal
policy is to defend the federal Defense of Marriage Act (DOMA) from
inevitable constitutional challenge.
It should be kept in mind that, while the marriage debate
is now a national issue, it is not primarily a federal policy
matter. By tradition, and in accord with our constitutional
division of power between the federal government and the states,
marriage is recognized and regulated by state law. Most of the key
battles, therefore, will occur at the state level.
- State Marriage
Statutes. The first line of defense is for states to
review their laws concerning marriage and clarify and strengthen
public policy preferences that favor traditional marriage.
DOMAs. If states want to avoid being forced to recognize
the validity of same-sex "marriages" originating in other states,
they must clearly and unambiguously declare their state policy and
their refusal to recognize those "marriages."
Constitutional Amendments. The best way to defend against
a state court that might seek to overturn state public policy or
force recognition of another state's marriage policy is to amend
the state constitution to establish a clear constitutional policy
that favors marriage.
Petitions. States concerned about the growing threat to
marriage ought to petition the U.S. Congress to voice their
concerns and express their views about federal legislation and a
constitutional amendment to protect marriage.
There are several things that Congress could do to support
and defend marriage. Consistent with DOMA, Congress could call on
the states to clarify their marriage statutes and define in state
law, and in state constitutions if necessary, that marriage is the
union of one man and one woman. Congress could also take steps to
enforce the definition of marriage established in DOMA when it
reauthorizes federal programs and otherwise enforces federal
policy, ensuring that all federal policies are consistent with that
definition. Having authority over the District of Columbia, which
currently has no laws defining marriage and has no DOMA, Congress
could pass legislation consistent with the federal DOMA that
protects the institution of marriage in the District of
most important and responsible step Congress can take to preserve
marriage is to send a constitutional amendment that protects the
institution of marriage to the states for ratification. While the
amendment process should never be taken lightly, and although it is
extremely difficult, it is now the prudent and timely course to
amend the U.S. Constitution to preserve marriage as the legal union
between one man and one woman. If the options are either to allow a
few activist judges to redefine marriage by judicial fiat or to
amend the Constitution to reflect the established will of the
people, the choice is clear. It is imperative, for the sake of
constitutional government, that we proceed with the democratic
process of amending the Constitution.
Spalding, Ph.D., is Director of the B. Kenneth Simon
Center for American Studies at The Heritage Foundation.