Tuesday, June 6, 2006

The proposed Marriage Protection Amendment to the U.S. Constitution does not violate principles of federalism. The definition of marriage has never been left to the states.

Some conservatives urge defeat of the amendment because, they say, the Constitution has traditionally left regulation of marriage to the states. But the proposed amendment does not address state power to regulate marriage; rather, it requires states to adopt a uniform definition of marriage of one man and one woman — something Congress has imposed upon states seeking admission to the Union for 160 years.

No concept of federalism has ever granted states the authority to define marriage any way they desire. Federalism only grants states the power to regulate marriage already defined as one man and one woman.

For the first half-century of America’s history governed by the U.S. Constitution, no one questioned this assumption that all states had to define marriage the same way. The question first arose in 1848, when Brigham Young and the Mormon polygamists of the Utah Territory sought statehood from Congress and insisted on their authority as a state to define legal marriage as including polygamy.

Congress, however, refused to grant Utah statehood unless it banned polygamy in its state constitution. The Mormon-dominated territorial legislature of Utah objected to this condition for statehood for almost 50 years, triggering a great struggle between Congress and the citizens of Utah over state authority to redefine marriage, including several cases that came before the U.S. Supreme Court.(Utah finally gave up its demand for legalized polygamy and became a state in 1896).

The Republican Party itself began as a party opposed to slavery and polygamy in the territories. In its first platform in 1856, the party saw no conflict with its positions on polygamy and state power to regulate marriage when it wrote that “it is both the right and the imperative duty of Congress to prohibit in the Territories those twin relics of barbarism — Polygamy, and Slavery.”

So, Sen. John McCain of Arizona and other like-minded conservatives are simply wrong when they oppose the proposed Marriage Protection Amendment because, as Mr. McCain said in 2004 on the floor of the Senate, it is “antithetical in every way to the core philosophy of Republicans,” because “it usurps from the states a fundamental authority they have always possessed.” In fact, the Republican Party began as a party supporting congressional authority to impose a uniform definition of marriage on the states, even on states that wanted to define marriage differently.

The threat of state legalization of polygamy compelled Congress to require at least some states to ban polygamy in their state constitutions as a condition of statehood. Interestingly, Congress required some states not only to ban polygamy but also to prohibit any efforts to eliminate those polygamy bans without permission of Congress. They did not view this as a violation of the principle of federalism.

For example, Congress required Arizona to ban polygamy in its constitution when the territory became a state in 1912, and the Arizona Constitution further states that “no future constitutional amendment shall be made which in any manner changes or abrogates this ordinance in whole or in part without the consent of Congress (Arizona Constitution, Article 20, section 13). Mr. McCain, take note: The actions of Congress toward your own state demonstrate that, historically, federalism did not bar Congress from imposing a uniform definition of marriage on the states.

Additionally, the Utah and New Mexico constitutions state that their respective bans on polygamy cannot be repealed without the consent of Congress. Clearly, Congress saw no violation of federalism in ordering some states not to change a marriage definition provision of their state constitutions without the consent of the federal government. In other words, federalism does not empower states to redefine marriage.

The Supreme Court has written approvingly of congressional authority to condition statehood on a territory’s adoption of a definition of marriage as one man and one woman. In the 1885 decision of Murphy v. Ramsey, the U.S. Supreme Court stated, “certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization.”

The court’s language may be flowery, but its point is clear. Congress has the constitutional authority to require states to adopt a uniform definition of marriage. This is a separate issue from the question answered by the principle of federalism, which presupposes states regulate marriage but gives them no authority to redefine it.

Members of the House and Senate should vote in favor of the proposed Marriage Protection Amendment without concern they are violating a long-held understanding of federalism. Instead, they are fulfilling the historical understanding of Congress’ role in the interplay of federalism and the definition of marriage.

Jordan Lorence is senior counsel with the Alliance Defense Fund in Scottsdale, Ariz. In 2004, he argued the case before the California Supreme Court in which it invalidated the marriage licenses issued by San Francisco to same-sex couples.

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