October 9, 2002

October 9, 2002 | Commentary on Family and Marriage

ED100902:  Wedding Bill Blues

One way or another, it seems, the status of marriage now depends on who amends the Constitution first. Marriage either will be radically redefined through a gay-rights strategy of litigation, or it will be preserved as we have known it through legislative deliberation and a formal amendment process.

A growing number of lawmakers and religious leaders are coming to believe in the need for a constitutional amendment to protect the definition of marriage as the union of a man and woman. Introduced in May by three House Republicans and three Democrats, the Federal Marriage Amendment would go beyond the 1996 federal Defense of Marriage Act by preventing any court from granting homosexual unions the same legal status as marriage. The Human Rights Campaign, the nation's largest gay and lesbian political group, calls the amendment an "attempt to write a group of Americans out of the Constitution." Amendment supporters, however, say they're trying to thwart an anti-democratic strategy to revolutionize marriage for all Americans. "Activists are trying to use the courts to force an utterly alien and bizarre concept of marriage down the throats of our entire society," says Matt Daniels, president of the Alliance for Marriage and the plan's principal architect. "Absent a constitutional amendment, we're defenseless."

Though no state allows gay or lesbian marriages, the courts are on the way. Two years ago in Vermont, judges ordered the legislature to recognize "civil unions" for gay couples, granting them most of the legal benefits of marriage. In Massachusetts earlier this year, the state's liberal Supreme Judicial Court agreed to hear a suit from seven homosexual couples demanding that their partnerships be considered legal marriages. A decision is expected in early 2003, while a similar case is pending in New Jersey.

A court victory for same-sex marriage in any state would instigate an avalanche of lawsuits: Plaintiffs could use the "full faith and credit" clause of Article IV of the Constitution to try to force other states to certify their unions. If successful in federal court, such an approach would take marriage policy out of the hands of state governments. Leading gay organizations, in fact, have made this a top priority. Of the more than 4,600 civil unions granted in Vermont, roughly 85 percent have involved out-of-state residents; at least one of these couples have already sued their home state, Georgia, but lost their bid to receive marriage benefits.

The Defense of Marriage Act, signed into law by President Clinton, says no state can be forced to recognize homosexual unions from other states. Several states also have passed their own legislation or amended their constitutions to ward off same-sex lawsuits.

But it's not clear this strategy will work. The Supreme Court could overturn the Defense of Marriage Act or even find a constitutional right to homosexual marriage. And the federal statute can't prevent the Vermont scenario: state courts' overruling state laws on marriage. Says Bill Wichterman, chief of staff for Pennsylvania Republican Joe Pitts, an amendment co-sponsor: "Gay marriage is coming, it's coming fast, and it's coming through the courts."

These concerns have galvanized conservative legal theorists, activists, and lawmakers. More than two years in the making, the House bill now reads: "Marriage in the United States shall consist only of the union of a man and a woman. Neither the Constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

The first part of the amendment would forbid any court or legislature from conferring the name of marriage on same-sex relationships, while the second would prevent judges from ordering state legislatures to create civil unions or give marriage benefits to homosexual couples. Laws respecting civil unions would be unaffected, supporters say, and states could still grant domestic partnerships the legal benefits of marriage.

A few conservative groups, such as the Family Research Council, have criticized the amendment for not banning same-sex unions outright. On the other hand, the American Civil Liberties Union claims it would "wipe out every single law" protecting these partnerships. Hyperbole aside, Robert George, the McCormick Professor of Jurisprudence at Princeton University, says he helped draft the amendment in order to leave marriage policy where it belongs--with legislatures and the democratic process. "If we ever lose the people on this issue," he says, "constitutional law will not save us."

The amendment idea has attracted a diverse coalition, including the Union of Orthodox Jewish Congregations of America, the Islamic Society of North America, Evangelicals for Social Action, and the Ethics and Religious Liberty Commission of the Southern Baptist Convention. Perhaps most striking is the backing from African-American churches. Black leaders cite concern for the integrity of the family, while many express anger that homosexuals invoke the language of the civil rights movement to justify gay marriage.

The House Judiciary Committee has not scheduled hearings on the matter, and aides admit it could take a court ruling in favor of gay marriage to energize the rank and file. With or without such a ruling, advocates of the proposal expect an uphill fight. Passage of a constitutional amendment--requiring proposal by two-thirds of the House and Senate and ratification by three-fourths of the states--is impossible without wide public support. That's exactly what the backers of the amendment are banking on. "Marriage is supported by most Americans and is the most multicultural institution in the world," says Matt Daniels of the Alliance for Marriage. "Woe to us if we can't mobilize a rainbow coalition to defend it."

Joseph Loconte is the William E. Simon Fellow in Religion and a Free Society at the Heritage Foundation and a commentator for National Public Radio.

About the Author

Joseph Loconte William E. Simon Fellow in Religion and a Free Society

Originally appeared in <i><a href="http://www.weeklystandard.com/">The Weekly Standard</a></i>