September 29, 2004

September 29, 2004 | Commentary on Family and Marriage

Letter to Congresswoman Marilyn Musgrave

Congresswoman Marilyn Musgrave
1208 Longworth House Office Building
Washington, DC 20515

Dear Representative Musgrave:

The United States House of Representatives is considering whether or not to send a constitutional amendment protecting marriage to the States for their consideration. Contrary to recent arguments and assertions, I believe that this amendment is consistent with-and increasingly necessary to uphold-the principles of federalism so important to our constitutional government.

The Framers rightly left marriage policy, as so many other things, with the States. But the definition of marriage is no mere policy issue. It strikes at the very integrity and meaning of one of the primary elements of civil society.

In a free society, certain questions must be 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.

As marriage is a fundamental social institution, it is not only reasonable but also obligatory that it be preferred and defended in the law. Activist judges forcing the redefinition of marriage make it necessary to protect the institution 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.

The wisdom of extending certain benefits that stop well short of marriage-that don't undermine the distinctive status of marriage-are policy questions that should be the responsibility of State legislatures.

A constitutional amendment that defines marriage and blocks the actions of overzealous judges would protect the States' capacity to regulate marriage by protecting the integrity of the institution as such.

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 judicially redefined out of existence.

The constitutional amendment process is neither an exclusively federal nor an exclusively State action: It is a shared responsibility of both Congress and the States representing the American people. By intention, it is a very difficult process.

Constitutional amendments ought to be rare and should be pursued only after careful and serious consideration, when it is necessary to address an issue of great national magnitude and when there is broad-based support among the American people throughout the States, as there is concerning marriage.

Is marriage sufficiently important to protect in the United States Constitution?

Despite our reluctance to amend our most sacred law-despite the significance of the endeavor and awesome task involved-recent and impending judicial activism justifies this course of action.

Thank you for considering and sharing these concerns with other Members of Congress.


Edwin Meese, III
Chairman, Center for Legal and Judicial Studies
The Heritage Foundation

Edwin Meese III, a former U.S. attorney general, is the Ronald Reagan Distinguished Fellow in Public Policy at the Heritage Foundation and chairman of its Center for Legal and Judicial Studies.

About the Author

Edwin Meese III Ronald Reagan Distinguished Fellow Emeritus
Edwin Meese III Center for Legal and Judicial Studies