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 the fundamental
definition of marriage is no mere policy issue. We're talking about
the very integrity and meaning of one of the primary elements of
civil society.
Nor is this 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, 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.
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.
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.
Edwin
Meese, III, is the Ronald Reagan Fellow at The
Heritage Foundation.