March 10, 2004
By Edwin Meese III and Matthew Spalding, Ph.D.
"Hasty marriage seldom proveth well," Shakespeare warns.
For thousands of years, every society, and every major religious
faith, has held that marriage is a unique relationship by which one
man and one woman are joined together for the primary purpose of
forming and maintaining a family.
Then along came the Supreme Judicial Court of Massachusetts --
following in the footsteps of a trial court judge in Hawaii, a
superior court judge in Alaska, and the Vermont Supreme Court --
proclaiming in Goodridge v. Department of Public Health that
marriage is "an evolving paradigm." Traditional marriage is out of
step with the times, we're told. It's arbitrary, irrational and
inherently discriminatory. The institution must be reformulated to
accommodate homosexual couples that are legally entitled to
marriage under the Massachusetts state constitution.
To make this leap forward, the Massachusetts court seized upon a
premise dangled before it by the U.S. Supreme Court in Lawrence v.
Texas -- that all individuals have a right to "seek autonomy" in
their private relationships, including "personal decisions relating
Perhaps this isn't what the Supreme Court intended, but what
advocates of same-sex marriage have in mind is clear: to
deconstruct marriage, in the name of an invented right, so that it
includes and publicly affirms homosexual unions.
In light of such vast claims and harsh language, is it any
wonder what is happening? With an air of defiance, from San
Francisco to New Paltz, N.Y., and from Sandoval County, N.M., back
to Multnomah County, Ore., local officials are actively violating
the law in order to catch the perceived wave of social progress
sweeping the nation.
Should Americans, renowned for their live-and-let-live spirit,
We ought to be disturbed when judges circumvent the lawmaking
process and assume the powers of legislating. We also should be
troubled by the ease with which these judges are willing to discard
clear laws and legislative intent because it fails their perception
of rationality. Constitutional government is threatened when judges
alter the definition of things and reinterpret duly approved laws
in order to achieve their own policy preferences.
But even worse than the way the courts are making these
decisions is the substance of what they are dictating. Think about
what's at stake. The basic unit of society is the family, but the
cornerstone of the family is marriage. The essence of marriage is
the union of man and woman as husband and wife. This unique
association provides social, economic and health benefits for
children and adults. It brings significant stability, continuity
and meaning to society, transferring basic cultural knowledge and
civilization to future generations.
To redefine marriage so that it is not intrinsically related to
the relationship between fathers, mothers and children undermines
the institution by separating it from its very nature and purpose.
President Bush put it this way: "Marriage cannot be severed from
its cultural, religious and natural roots without weakening the
good influence of society."
There is "an overwhelming consensus in our country," as
President Bush observed, that marriage is between a man and a
woman. If opinion polls are any guide, most Americans understand
that this is not just a shouting match over living
But do we need to amend the Constitution? One's first reaction
is to hesitate. No state formally has legalized homosexual
marriage, and, as a result, there is no case that threatens to
force the issue on other states or the nation. There is as yet no
challenge to the federal Defense of Marriage Act of 1996. These
battles lie ahead, and each will be important.
Legal certainty, however, is not the standard of political
judgment. The Defense of Marriage Act might stand constitutional
scrutiny -- but it might not. Regardless, it does not protect the
nation from state judges like those in Massachusetts who insist on
same-sex marriage by misconstruing their state constitutions. Nor
does it address the legal anarchy that now abounds. A
constitutional amendment is the only sure and democratic way to
stop activist judges from imposing their will on the people.
But do we need to define marriage in the Constitution, making
national what has always been the province of the states? Again,
the first instinct is to say no.
In our system of law, the powers of government are divided
between the federal and state governments. The framers rightly left
marriage policy -- as so many other things -- with the states.
Yet this is not a matter for state-by-state experimentation.
Society isn't harmed when high-tax states live side by side with
low-tax states. The market adjusts to the inconsistency. Not so
with marriage. A highly integrated society such as ours -- with
questions of property ownership, tax and economic liability, and
inheritance and child custody crossing state lines -- requires a
uniform definition of marriage.
In a free society, certain fundamental questions must be
addressed and settled for the good of that society. States can't
impair the obligation of contracts, or coin their own money, or
experiment with forms of non-republican government. We learned the
hard way that the nation could not endure half slave and half
If marriage is a fundamental social institution, then it's
fundamental for all of society. As such, it is not only reasonable
but obligatory that it be preferred and defended in the law -- and,
if necessary, protected in the U. S. Constitution.
This doesn't mean that marriage must be completely nationalized
or should become the regulatory responsibility of the federal
government. Policy decisions concerning questions such as degrees
of consanguinity, the age of consent and the rules of divorce
should remain with the states.
But we must protect the integrity of the institution as such by
defining the societal boundaries and determining the limits beyond
which no part of society can go.
A constitutional amendment that defines marriage would protect
the states' capacity to regulate marriage by sustaining it as an
institution. In order to guard the states' liberty to determine
marriage policy in accord with the principles of federalism,
society as a whole must prevent the institution itself from being
redefined out of existence or abolished altogether.
Let's not fool ourselves: it is extremely difficult to amend the
Constitution. The framers, in their wisdom, made it hard --
precisely to assure that any changes were important enough to have
broad-based support among the American people and in the
The question comes down to this: Is marriage sufficiently
important to protect in the U.S. Constitution?
If the correct answer to this question is yes, then we should
take that fact, and not political expediency, as our principled
The very consideration of an amendment that focuses on marriage
would be an important vehicle for a nationwide debate about the
nature, purpose and legal status of the institution of marriage.
States are already strengthening their laws, passing state defense
of marriage acts and considering state constitutional amendments --
all of which should be encouraged. A meaningful national
conversation about an amendment to defend marriage will further
this process and become the centerpiece of a larger and longer-term
effort to promote and strengthen marriage and the family.
The defenders of marriage did not choose this debate or force
this issue on the nation. Americans are a wonderfully tolerant and
very reasonable people. But the issue having been joined, and the
decision having been forced, we must now act on our basic
principles and deepest convictions -- to preserve constitutional
government and protect marriage.
First appeared in the Wall Street Journal
To amend or not to amend? That's the big question when it comes to gay "marriage" and the Constitution
Edwin Meese III
Ronald Reagan Distinguished Fellow Emeritus
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Vice President, American Studies and Director, B. Kenneth Simon Center for Principles and Politics
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