The marriage amendment

Marriage has traditionally been a state matter under our federal system, but states are now under focused pressure from special interests that seek legitimacy for “homosexual marriage,” which a clear majority of Americans oppose.

So far, only a few states have been confronted with this issue, but the impetus, as evidenced by the controversy that recently roiled the Episcopal Church, is clearly there. Some states, like Vermont, Massachusetts and Hawaii, have toyed with the idea of same-sex marriage either in their courts or their legislature, and other states may in the future. So-called civil unions, which provide equal benefits without conferring the status of “marriage,” are already in place in Vermont.

The recent U.S. Supreme Court decision guaranteeing homosexuals equal treatment regarding sexual practices gives no special claim to marriage rights. After all, many who have equal sexual autonomy are disqualified from marriage because of, for example, close kinship, youth or the fact that they are already married — despite the fact that marriage is a fundamental interest under the Constitution. The question is, how can the American majority protect against the special status sought by same-sex marriage advocates?

The answer is clear — a federal constitutional amendment.

Americans use written constitutions to hamstring the government and permanently fence off matters about which it can’t be trusted. For example, our forebears judged governments incompetent to protect such rights as free speech or fair trials, so the federal and state constitutions take them off the table. States couldn’t be trusted to free slaves or confer citizenship on African Americans, so it went into the Constitution. Some matters are to remain forever beyond government’s reach.

Federal and state governments have exhausted the options available to protect the historical view of marriage as the union of a man and a woman. In 1996, then-President Clinton signed the Defense of Marriage Act that protects states from having to give full faith and credit to same-sex marriages contracted in other states.

A well-established rule of Conflict of Laws, the public policy exception, also allows state courts to deny recognition to marriages that offend the public policy of that state. Finally, some states, such as Georgia explicitly ban homosexual marriages and treat them as void.

Experience, however, teaches that this legal “belt-and-suspenders” approach, relying on federal and state statutes and legal doctrine, may prove inadequate against the persistent pressure of a national “gay rights” agenda or an uncritical and boundaryless notion of “equality.”

It is precisely for such occasions that resorting to explicit constitutional barriers is appropriate.

Several western states offer examples of how traditional marriage can be protected constitutionally. Arizona, Idaho, New Mexico, Oklahoma and Utah, for example, explicitly prohibit the adoption of laws authorizing polygamy or plural marriage in their state constitutions. Why? To protect against powerfulMormonconstituencies, whose 19th-century adherents practiced and promoted polygamy or “celestial” marriage. Constitutional barriers can protect traditional marriage and have been used to guard against odious onslaughts from politically powerful groups in our society.

Also, consider the effort to ban flag burning by federal and state laws as opposed to a constitutional amendment. The Supreme Court struck down both approaches in separate cases, despite the insistence of the federal statute’s ardent supporters that it would end the desecration of our national symbol. It didn’t work. The clear lesson is that only a constitutional amendment will get the job done.

House Joint Resolution 56, the Federal Marriage Amendment, offers protection for traditional marriage. It is comprised of a single section so clear that neither Congress nor the courts can monkey around with it later on. It provides the following: Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution nor the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

Constitutional amendments are the main line of defense when deeply held values are threatened. Americans who value traditional marriage must demand that Congress act now on House Joint Resolution 56 to protect marriage from attack. Reserved for critical matters, the process of amending the U.S. Constitution is the best way to fence off future legislative and judicial action. As the natural law cornerstone of society, traditional marriage must be defended and protected.

L. Lynn Hogue is legal advisory board chairman for Southeastern Legal Foundation and a constitutional law professor at Georgia State University College of Law.