In light of today’s debate over Congress and its shaky federalism principles, this prior column on the marriage amendment may be of interest.

It could be aptly called the “American Gothic Amendment,” after Grant Wood’s famous painting of a stoic farmer, his wife, and his pitchfork. This week, a proposed amendment to the United States Constitution was introduced in Congress that would categorically state that “Marriage in the United States shall consist only of the union of a man and a woman.” The amendment is designed to preserve the traditional heterosexual marriage captured by Wood as the bedrock of American society.

There is considerable question as to whether the traditional marriage is truly in danger in the United States. What is clear, however, is that the Federal Marriage Amendment would itself threaten a fundamental governing principle of the Constitution. In our system, questions like the definition of marriage are left to the citizens of each state to decide. This amendment would remove the ability of the states to adopt different approaches in this area and, for the first time, mandate an immutable moral position for citizens.

The Federal Marriage Amendment was conceived after Vermont’s controversial recognition of “civil unions” of gay couples as well as a few decisions in Alaska and Hawaii interpreting state law in favor of gay couples. One of the chief sponsors, Congressman Ronnie Shows stated that the amendment is needed to “let our children know that marriage matters, and that families matter.”

Normally, such amendments are harmless objects for the congressionally unoccupied. Over the course of our history, Congress has considered over 11,100 such amendments and at any given time there may be as many as 170 proposed amendments under consideration. This amendment, however, is different. It might not only pass but it may pass for all of the wrong reasons.

Both republicans and democratic sponsors have warned their colleagues that only a constitutional amendment can protect traditional marriage because it is the Constitution itself that is the problem. Without such an amendment, these members have insisted that Americans could be forced to accept same-sex marriage despite their overwhelming opposition. The most touted scenario is that some state will eventually recognize same-sex marriages and then gay couples will demand that other states give “full faith and credit” to their licenses.

In reality, there is little immediate danger of such a forced adoption of same-sex marriages. Even if a state were to recognize same-sex marriages, the framers gave Congress the ability to limit the effect of the Full Faith and Credit Clause. Congress did so in the Defense of Marriage Act (DOMA). Signed into law by President Bill Clinton, DOMA allowed states to decline to recognize marriages that were “between persons of the same sex.”

Moreover, the courts have recognized that there are exceptions to this clause, including a public policy exception. The clause was never intended to allow a single state to force 49 other states to adopt a position that the majority of citizens find morally unacceptable. It is doubtful that the federal courts would interpret this clause as requiring recognition of same-sex marriages.

Advocates also insist that a federal court may rule at any time that same-sex marriages are protected under the equal protection clause. This would follow the reasoning of the 1967 Loving decision in which the Supreme Court struck down state laws limiting marriage to couples of the same race. However, the current Supreme Court has yet to reverse a 1986 decision that allows states to criminalize voluntary homosexual relations. It seems highly doubtful that a court that currently allows homosexuals to be jailed for consensual sexual acts would embrace an equal protection claim on the right to marry.

There is no immediate danger to traditional marriage in the United States, but the Federal Marriage Amendment itself does pose a danger to our constitutional traditions. This country was founded on a principle of federalism in which each state is recognized as a distinct sovereign authority subject only to limited federal regulation. While Congress often covets state issues like marriage for their powerful symbolic value, they are the forbidden fruit of the Constitution. Of course, nothing prevents the states from giving such issues wholesale to the federal government in the form of a constitutional amendment. With this amendment, states would bind their citizens to a moral position in the Constitution and relinquish their right to adopt a conflicting position.

It would also invite constitutional clutter; reducing this document to an impulse buy item for every member with an aspirational or symbolic amendment to offer. Currently, there are dozens of such amendments on the Hill with some support. Once such amendments enter the Constitution, it is near impossible to remove them given the requirement that three-fourths of the states must agree. This is why a Madisonian democracy demands a level of self-restraint among its citizens that is sometimes lacking in their political representatives.

Nothing, of course, guarantees that states will not eventually adopt different views of marriage. This seems to be the real concern among supporters of this amendment. The Madisonian system is designed to allow social and moral views to evolve with society. The amendment would effectively prevent such democratic choice by freezing the current view into a type of constitutional amber. Our constitution would then tether the nation to a position that the majority may ultimately reject. This is precisely why the framers did not use the Constitution to teach moral lessons to future generations but instead created a political process by which we could resolve our differences.

This country does not need a constitutional prenuptial agreement for citizens to commit to marriages only with the opposite sex. Certainly, the 55 million married couples in this country do not need a constitutional amendment to establish that “marriage matters.” It is a poor lesson indeed if a parent can only show that “marriage matters” through constitutional compulsion rather than moral instruction.

Jonathan Turley
May 2002