Constitutional rashness

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Conservatives should squelch a rash constitutional amendment pending in the House of Representatives to prohibit states from recognizing homosexual marriages and thus place the issue off-limits for popular democratic discourse. The amendment would enervate self-government, confound the cultural sacralization of traditional marriage and child-rearing, and clutter the Constitution with a nonessential.

Marriage wrenches reason and gives birth to impassioned judgments. Sir Francis Bacon insisted that wives and children frustrate great enterprises. Sage Sam Johnson sermonized that second marriages epitomize triumphs of hope over experience. Cervantes decried marriage as a noose. And Benjamin Franklin advised keeping your eyes wide open before marriage, but half shut afterward. On the other hand, Martin Luther celebrated a good marriage as the pinnacle of a charming and affectionate communion.

Same-sex marriage has predictably awakened strong emotions. The topic has captured center stage in recent years through a series of adventuresome judicial decrees. The Hawaii Supreme Court ruled that confining marriage to heterosexual couples constituted gender discrimination prohibited by the state constitution, which provoked an amendment to overrule the decree.

Amidst heated debate in response to a state court mandate, Vermont enacted a civil union law for gays and lesbians, making them eligible for more than 300 benefits enjoyed by married couples.

Last June, the U.S. Supreme Court added fuel to the same-sex marriage fire by holding homosexual sodomy laws unconstitutional in Lawrence vs. Texas (2003). Justice Anthony Kennedy, writing for the majority, and Justice Sandra Day O'Connor, writing a concurrence, maintained that Lawrence left traditional state definitions of marriage undisturbed. But Justice Antonin Scalia, speaking for three dissenters, complained that the reasoning of Justices Kennedy and O'Connor cast a cloud over same-sex marriage prohibitions.

In 1996, President William Jefferson Clinton initialed the Defense of Marriage Act. For purposes of federal law, marriage is defined exclusively as "a legal union between one man and one woman as husband and wife." The act also purports to lift any obligation of states under the Full Faith and Credit Clause of the Constitution to recognize same-sex marriages that might be sanctioned in sister jurisdictions.

At present, 37 states expressly withhold the sanctity of marriage from homosexual couples. The remainder accomplishes the same by implication. Under the Full Faith and Credit Clause, as interpreted by the Supreme Court in Sun Oil Company vs. Wortman (1988), and Pacific Employers Ins. Co. vs. Industrial Accident Commission (1939), no state would be compelled to recognize same-sex marriages authorized by a sister state. The high court explained that the clause does not compel "a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate." And the court declared in Penoyer vs. Neff (1878): "The state... has an absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved."

Amendment proponents urge that Lawrence erected an imminent constitutional danger to same-sex marriage prohibitions despite the disclaimers of Justices Kennedy and O'Connor. But that worry is hollow. Unlike homosexual sodomy laws, the prohibitions neither regulate intimate personal behavior nor impair bedroom privacy.

Moreover, individual rights restrain government from affirmatively regulating or punishing freedoms of action or belief. In contrast, the withholding of an official marriage sanction for homosexuals neither curtails nor penalizes their behavior or opinions.

In addition, a state enjoys the discretion to reserve its marriage stamp for heterosexuals because intuition and experience teach that such households generally are the most propitious for procreation and child rearing. That reservation also legitimately encourages the next generation toward traditional marriage, just as the government's reservation of public statues and monuments for heroes properly seeks to inspire emulation.

Accordingly, worries over a Supreme Court decision endowing homosexuals with a constitutional right to marry are unconvincing. And the Constitution would compromise its sacred brevity, accessibility and venerated confinement to the essentials of democratic government if amendments proliferated to pre-empt endless hypothetical misjudgments by the high court.

Finally, issues should remain in the legislative arena and exposed to robust debate except for compelling reasons. Simple majority rule fluctuating in accord with popular opinion is the strong presumption of democracies. But that presumption and its purpose would be defeated by the constitutional rigidity and finality of a no-same-sex-marriage amendment.

Additionally, democracy thrives best when citizens are compelled to educate their friends and to persuade their opponents to obtain desired legislation. A cultural and political reverence for traditional over same-sex marriage will flourish only if the reasons for the preference are actively taught and fastidiously learned. A constitutional amendment definitively disposing of the question and ending debate, however, would drain the preference of liveliness and intellectual vitality. Unchallenged ideas wither. More than 90 percent of what we believe pivots on mastering the deficiencies of alternative convictions.

In sum, a no-same-sex-marriage amendment would celebrate a radical standard for constitutional revision, would slight the judiciousness of the American people and state legislatures in addressing the question, and, would arrest needed and continuing cultural education in the superiority of traditional marriage. If there is anything convincing to be said of the amendment, it does not readily come to mind.

Bruce Fein is a founding partner of Fein & Fein.