Monday, May 22, 2006

The Senate Judiciary Committee, prodded by President Bush, approved the wrong Federal Marriage Amendment (FMA) last week. The right amendment would have entrusted exclusively to Congress and state legislatures the decision whether to recognize same-sex “marriage.” In contrast, the wrong FMA precludes legislative bodies from recognizing same-sex unions irrespective of majority sentiments. It amends the U.S. Constitution to impose a nonrecognition requirement on every state and the national government even if majorities in Congress and state legislatures favor recognition.

Rule by the majority is the prevailing constitutional norm. Limited exceptions are made to check abuses against discrete and insular minorities or legislative rashness, for example, the Bill of Rights, the presidential veto, and small state overrepresentation in the Senate. The wrong FMA violates the majority rule presumption without justification. Opponents of same-sex “marriage” are politically powerful and socially dominant. At present, they are a decisive majority, which explains a recent flurry of amendments to state constitutions to forbid recognition of same-sex “matrimony.” Its detractors need no constitutional protection against themselves in legislative chambers or popular referenda.

The wrong FMA also weakens attachments to traditional marriage. Legislative struggles deepen convictions and creeds. Relying on the Constitution as a surrogate risks losing public support. Think of Roe v. Wade. Pro-choice organizations lost ground to their pro-life rivals by depending on abortion decrees of the Supreme Court in lieu of arguing their case before legislatures and the public at large.

The wrong FMA insults the adage that the science of government is the science of experiment. It prevents experimentation among the states in recognizing nontraditional marriages without danger to the entire nation. (The Constitution combined with the Defense of Marriage Act entitles each state to decide whether to recognize same-sex “marriages” consummated in a sister jurisdiction). Opposition to same-sex “marriage” pivots partly on speculation over its influence on health or procreation. Permitting a jurisdiction like Massachusetts to embrace same-sex “marriage” would make possible a more reliable assessment of social consequences.

Constitutional amendments customarily modify the allocation of political power and participation as opposed to engrafting social or economic policies. The Civil War Amendments, the Income Tax Amendment, the direct election of U.S. senators, the enfranchisements of women and youths, and the two-term limit on the presidency are illustrative. The Prohibition Amendment was an aberration. It was quickly repealed before adulthood as an ill-conceived crusade for human uplift and of dry states to cram their conception of virtue down the throats of wet states. Proponents of the wrong FMA should be deterred by the Prohibition example.

While the wrong FMA should be defeated, the right FMA deserves adoption by Congress and ratification by the states. It would oust courts from interpreting either the U.S. Constitution or state constitutions to require recognition of same-sex “marriages.” The issue would be left exclusively with popularly elected legislatures or the people through initiatives or referenda.

Like women, cultural change should be courted, not taken by storm. Public opinion that gradually translates into legislative majorities should determine the fate of traditional marriage. Dramatic court decrees that strike like a thunderbolt generate needless community strife or friction. Roe speaks volumes on that score. When the Supreme Court ordained a constitutional right to an abortion, state legislatures had been relaxing abortion restrictions for a decade without vituperative or violent controversy. Then California Gov. Ronald Reagan signed pro-choice legislation in 1967 indistinguishable from the constitutional right later proclaimed in Roe.

By racing ahead of public opinion and making the issue a matter of constitutional right, Roe created two rival camps like Shakespeare’s Montagues and Capulets. Fractious debate and conflict over abortion erupted. The friction has never ceased. If same-sex “marriage” is to become orthodox in the United States, it should not come in the manner of abortion rights and Roe.

The right FMA would thus confer exclusive jurisdiction over the matter to majority rule, directly or through legislative action. The legal landscape would not be skewed to either favor or oppose same-sex “marriage.” Thus, state constitutions that prohibit state legislatures from recognizing same-sex “marriage” would bow to the even legislative playing field mandated by the right FMA. On the other hand, judicial capers like the Massachusetts Supreme Judicial Court’s discernment of a state constitutional right to same-sex “marriage” would likewise be prohibited.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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