Thursday, September 25, 2003

Proponents of the Federal Marriage Amendment are right: This is a political fight that is worth having. But they are wrong in thinking an amendment to the U.S. Constitution defining marriage as the union of one man and one woman will save the institution from the depredations of the postmodern deconstructionists.

This is because the problem is not with the Constitution, but the courts.

Nothing in the text of the Constitution suggests the federal courts have the authority to define marriage for the 50 states. Indeed, our entire legal history powerfully reinforces the idea that marriage law is a matter of state’s rights.

Yet the amendment’s advocates, including such first-rate legal minds as Robert Bork, Hadley Arkes of Amherst College and Robbie George of Princeton, fear activist federal courts will impose homosexual “marriage” on the states. This concern is real and should not be underestimated.

Even so, amending the Constitution will not resolve the problem or dissipate the threat. Judges who are unconstrained by the actual text of the Constitution, the doctrine of federalism, or America’s legal history are unlikely to be deterred by a mere amendment. If such judges are willing to ignore the plain language of the Constitution in other circumstances, why would they suddenly be obliged to respect the text of a marriage amendment?

They wouldn’t, and this is why the federal marriage amendment ultimately will not save marriage.

Result-oriented judges have shown over and over that they are willing to wield raw judicial power to achieve their desired social ends. Justice Antonin Scalia made exactly this point in his ringing dissent in Lawrence vs. Texas, the anti-sodomy law decision that Justice Scalia prophetically warned laid the predicate for federal pre-emption of state marriage law.

Other recent cases are likewise suggestive. Justice Sandra Day O’Connor explicitly admitted in the University of Michigan affirmative action case that the 14th Amendment prohibits the government from discriminating or showing favoritism on the basis of race. Yet in affirming government-sanctioned race discrimination for university admissions, Justice O’Connor averred that a compelling state interest in diversity overrides the amendment.

One can almost hear Justice O’Connor on the federal marriage amendment: Yes, the plain language of the amendment bars the government from extending legal recognition to any union other than that between one man and one woman for the purpose of marriage. Yet a compelling state interest in promoting equality, and growing public tolerance of alternative sexual arrangements among consenting adults, leads to the inevitable conclusion that the marriage amendment does not ban legal recognition of same-sex unions, plural marriage, polygamy and other novelties. The equity argument trumps a rigid textualism.

One need hardly note other recent examples of runaway courts trashing federal and state constitutions. Such examples could include the 9th “Circus” Court’s bizarre ruling on the Pledge of Allegiance and its unwarranted intervention in the California recall election.

And what of the New Jersey Supreme Court ripping up the Garden State’s election law to substitute Frank Lautenberg on the ballot for the imploding Bob Torricelli?

Or consider a federal court arrogating to itself the power to decide what kinds of monuments will adorn state government buildings in Georgia. Is such lawless jurisprudence likely to be cowed by a marriage amendment?

Clearly, then, the problem is not a defective Constitution, but a renegade judiciary that the other two branches of government have failed to restrain under the separation-of-powers doctrine. Such activist, politicized judges are unlikely to be deterred by another amendment to a Constitution they already hold in contempt.

Still, the fight over the federal marriage amendment is one that might be worth having. America is deeply divided between those who espouse traditional Judeo-Christian moral values and those who favor a post-Christian, postmodern secularist vision of society. Pat Buchanan was dead right about the culture war in his 1992 Republican Convention speech.

The forces of traditional values have been in retreat and losing ground for four decades. The defense of marriage is the last fall-back position. If we cannot save marriage, the indispensable social institution, then we will have lost the American culture to the sexual libertines and radical secularists.

So, as my friends Hadley Arkes and Robbie George argue persuasively, this is a fight worth fighting in order to catalyze public support for an institution under assault. But let’s not fool ourselves: Unless we restrain the judicial oligarchs, the marriage amendment will not save marriage.

Richard Lessner is executive director of the American Conservative Union.

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