March 10, 2004 | Commentary on Legal Issues
"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 to marriage."
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, care?
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 arrangements.
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 free.
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 states.
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 starting point.
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