Some have cold feet. Others are indecisive. Many would rather
avoid the issue.
Are we willing to amend the U.S. Constitution to preserve the institution of marriage? The question will come before the Senate this week when members debate and vote on whether to consider a constitutional amendment that protects marriage between a man and a woman.
It's not clear what several key senators will do. They say marriage should be between one man and one woman. But they're reluctant to amend the Constitution. They probably think the 1996 Defense of Marriage Act, or DOMA, is enough to protect marriage.
That argument made sense eight years ago. Judges in Hawaii declared the state's marriage statute was "sex discrimination" and violated the Hawaii constitution. That's when Congress overwhelmingly passed DOMA, signed by President Clinton, that defines marriage for purposes of federal law as the union of one man and one woman, and clarifies that the "full faith and credit" clause of the U.S. Constitution does not require that states be forced to recognize as a marriage any union other than that of one man and one woman.
But two U.S. Supreme Court cases changed all that. In Romer vs. Evans, the court declared a state constitutional amendment unconstitutional because it was "born of animosity" toward homosexuals and violated equal protection under the U.S. Constitution. And in Lawrence vs. Texas, the court declared that all individuals have a due process right to "seek autonomy" in their private relationships, including "personal decisions relating to marriage."
Last November, the Massachusetts Supreme Court ran with these ideas when it ruled traditional marriage "is rooted in persistent prejudices" and that homosexual couples are legally entitled to marriage under the state constitution. Massachusetts now has issued more than 2,500 "marriage" licenses to same-sex couples from 27 states and the District of Columbia, creating legal standing to challenge DOMA nationwide.
The effect of all these decisions, and the litigation strategy behind them, is now clear: establish same-sex "marriage" as a civil right the federal government will then have a constitutional obligation to secure nationwide.
Is it likely DOMA will withstand this judicial juggernaut?
Under normal circumstances, the answer would be yes. Congress has the power under Article IV to prescribe the effect of the "full faith and credit" clause. But DOMA won't survive activist judges bent on using dubious interpretations of equal protection or due process to advance their policy objectives.
"You'd have to be tone deaf," says Harvard law professor Lawrence Tribe, "not to get the message from Lawrence that anything that invites people to give same-sex couples less than full respect is constitutionally suspect."
Just read the latest issue of the prestigious Harvard Law Review, the journal of record in elite legal circles: "Now the time is ripe for a constitutional challenge to DOMA." Why? Allegedly DOMA was motivated by animus, violates equal protection principles and is incompatible with substantive due process.
The first challenge to the constitutionality of DOMA has been filed in a Florida federal court, arguing DOMA not only abuses full faith and credit but, more importantly, violates the equal protection guarantee of the U.S. Constitution.
In the face of this challenge, it's not only reasonable but obligatory that marriage be preferred and defended in the law - and protected in the Constitution.
This doesn't mean marriage must be completely nationalized or regulated by the federal government. The Framers rightly left marriage policy with the states. But we can protect the states' liberty to regulate marriage, in accord with the principles of federalism, only by acting to prevent the institution itself from being redefined out of existence or abolished altogether.
This is a time for choosing.
One option is to allow a few radical judges to redefine marriage by legal fiat, according to their notions of social progress. By circumventing the legislative process and excluding the people from so fundamental a decision, these judges threaten our democracy and the rule of law.
The other option - this week in the hands of the U.S. Senate - is to proceed with the democratic process of amending the Constitution to reflect the settled will of the people.
Nothing less than the future of our society, and the course of constitutional government in the United States, are at stake.
Edwin Meese III is the Ronald Reagan fellow at the Heritage Foundation. Matthew Spalding is director of Heritage's B. Kenneth Simon Center for American Studies.
First appeared in The Washington Times