At a time when many Republicans have embraced a “don’t ask, don’t tell” approach to same-sex marriage (“Don’t ask me what my position is because I won’t tell you”), Republican Sen. Ted Cruz of Texas has proposed a characteristically audacious solution to judicial assaults on traditional marriage: a constitutional amendment.
Mr. Cruz’s proposed marriage amendment would prohibit the federal government or the courts from overturning state marriage laws. It may be the only way to restore the people’s voice in defining society’s most fundamental institution.
Since the Supreme Court overturned parts of the Defense of Marriage Act last year, U.S. district courts in 20 states and state courts in six states have overturned state-level laws upholding marriage as the union of one man and one woman.
In response, last February Mr. Cruz introduced the State Marriage Defense Act, which would recognize states’ right to define marriage for federal purposes. (Republican Rep. Randy Weber of Texas introduced similar legislation in the House.)
In October, the high court effectively permitted lower courts to strike down state marriage laws in five states. Not coincidentally, in none of those states (Virginia, Wisconsin, Oklahoma, Utah and Indiana) does support for homosexual marriage reach 50 percent.
With its ruling, the Supreme Court abdicated its responsibility to uphold the Constitution, which makes clear that marriage is a matter for the states. That’s when Mr. Cruz pledged to introduce the constitutional amendment.
Advocates of same-sex marriage constantly claim that Americans overwhelmingly support homosexual marriage and that nationwide, it is inevitable. Neither is true.
Very few states’ voters have voted for gay marriage. Meanwhile, voters in 31 states have voted to define marriage as the union of one man and one woman, and as recently as 2012. In September, Pew Research found that support for homosexual marriage had declined to less than 50 percent, a 5-point drop from seven months earlier. The only reason a majority of states now recognize homosexual marriage is that unelected judges have been willing to overrule the will of the American people and impose it on them.
The idea that states get to define marriage is rooted not only in the Constitution but also in the recognition that support for same-sex marriage varies widely by state. According to a 2013 report by UCLA’s Williams Institute, support varied from 62 percent in the liberal District of Columbia to half that much, 31 percent, in southern states like Louisiana and Arkansas.
Legally speaking, the debate over marriage hinges on one question: Who gets to decide — unelected judges or the American people?
U.S Court of Appeals for the 6th Circuit Judge Jeffrey Sutton acknowledged this fundamental question earlier this month in a majority opinion ruling that four traditional marriage amendments (in Kentucky, Michigan, Tennessee and Ohio) be allowed to stand.
Judge Sutton wrote that altering the definition of one of society’s most fundamental institutions should be left not to the courts but to “the less expedient, but usually reliable, work of the state democratic processes.”
Judge Sutton’s decision makes it more likely that the Supreme Court will take up the issue, and soon. This possibility makes the need for a constitutional amendment more urgent.
Even if the high court doesn’t get involved, lower courts will continue to redefine marriage against the will of the people. Earlier this month in South Carolina, a district judge ruled that the state’s ban on gay marriage, supported by more than three-fourths of Palmetto State voters, was unconstitutional.
Passing a constitutional amendment defending traditional marriage would be difficult, of course. An amendment would need to be supported by two-thirds of members of Congress and ratified by three-quarters of state legislatures.
Still, the chances of it passing will be higher in January, when a new Congress with solid Republican majorities is sworn in and many state houses will take on a deep-red hue.
By the way, the new Republican-controlled Senate would be smart to champion the amendment. Again, the question doesn’t involve arguing over the definition of marriage as much as it does determining who gets to decide. A 2013 New York Times-CBS News poll found that 60 percent of Americans favored leaving marriage to be determined by each individual state.
A constitutional amendment seems like a long shot, but it is one worth taking. It may be the only way to halt the trend of unelected, unaccountable judges imposing their own definition of marriage against the will of the people.
• Gary Bauer is president of American Values and chairman of the Campaign for Working Families.