A Renewed Call for a Federal Marriage Amendment



800px-United_states_supreme_court_buildingThe United States Supreme Court heard arguments dealing with the issue of the constitutionality of the Defense of Marriage Act (DOMA) and California’s Proposition 8, which was a defense of traditional marriage (between one man and one woman) that was approved by the voters, but later was declared unconstitutional. In United States v. Windsor, the Court in a 5-4 decision, struck down the federal DOMA law as unconstitutional, but also ruled that states that prohibit same-sex marriage do not have to recognize gay marriages that have been legalized in other states. In another 5-4 decision, the Court in Hollingsworth v. Perry ruled that the California court decision to overturn Proposition 8 would stand because the Supreme Court does not have jurisdiction.

The issue at hand is whether or not same-sex marriage is a protected right under the Constitution. Several states have passed constitutional amendments defining and protecting traditional marriage. Some states, including Iowa and most recently Minnesota, are allowing same-sex couples to marry. The debate over marriage has furthered the cultural divide in our nation, and just as with the Roe v. Wade decision on abortion, the Supreme Court’s decision will have a major impact not only on the future of marriage, but also on the future course of the nation.

Matthew Spalding, Vice President of American Studies and Director of the B. Kenneth Simon Center for Principles and Politics at The Heritage Foundation, wrote that the “debate over the legal status of marriage has emerged as a critical national issue, the resolution of which will shape the future of our society and the course of constitutional government in the United States.” Albert Mohler, who serves as President of Southern Baptist Theological Seminary, described the debate over marriage:

Taken together, these cases threaten nothing less than the redefinition of the most basic and essential institution of human society — any society. Marriage stands at the center of human culture and life, forming the necessary network of relationships upon which society depends. Every society in human history has found its way to the establishment of marriage as the centering institution of all social order. Its exclusively heterosexual character has been challenged only in very recent years and only in a few nations. Now, this institution that has preserved the context for intimacy, procreation, and the raising of children is threatened with a redefinition that would render the state’s conception of marriage at odds with millennia of human wisdom, putting human flourishing at risk.

The debate over the definition of marriage is taking the nation by storm as advocates of same-sex marriage argue that they are being denied the right to freely enter into the covenant of marriage. Defenders of same-sex marriage argue that the Constitution’s Due Process and Equal Protection clauses protect them against traditional marriage laws such as DOMA.

John C. Eastman, a Constitutional scholar and lawyer, wrote that “the Equal Protection Clause does not compel recognition of same-sex marriages because same-sex couples are not situated similarly, in relevant respects, to opposite sex couples.” Wayne Grudem, in Politics According to the Bible, quotes Judge Richard Posner, who argued that “nothing in the Constitution or its history suggests a constitutional right” to same-sex marriage.

In addition, the legality of same-sex marriage would result in several major constitutional questions. As Albert Mohler noted:

A finding that DOMA is unconstitutional would lead immediately to a realignment of laws dealing with marriage at the national level and to an avalanche of litigation in the states. Just as urgently, such a decision would put a host of threats to religious liberty into action, threatening the rights of churches, religious institutions, and citizens who are opposed to same-sex marriage on religious grounds.

Other constitutional questions would be brought forward in terms of freedom of association, free speech, and education. In addition the Windsor decision will bring further constitutional questions over equality because it is most certain that states that prohibit same-sex marriage will be challenged for discriminating against same-sex marriages. The current trend seems to be moving in favor of same-sex marriage as more Americans are taking a libertarian stand on the issue, but in the end the future of marriage will have a significant impact on our nation. Patrick J. Buchanan wrote that “a common faith and moral code once held this country together,” but the cultural and even economic debates of today demonstrate the great divide in our nation over these issues. Buchanan noted that as a society America “has lost its moral bearings and is rapidly losing its mind.”

The solution to the marriage issue is to adopt a federal marriage amendment which protects traditional marriage. As Judge Robert H. Bork wrote in Slouching Toward Gomorrah: Modern Liberalism and American Decline, “the question of homosexual marriage is going to be decided at the national level; either there will be a constitutional right to such marriages, created out of whole cloth by judges, or there will be an amendment to block that development.”

Republished by permission from INSTITUTE BRIEF, a publication of Public Interest Institute.

Photo credit: Jeff Kubina via Wikimedia Commons (Public Domain)

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  • http://greghauenstein.com/ Greg Hauenstein

    Nations around the world have recognized marriages between same-sex partners for years. The sky has not fallen. The sky will not fall. “Because that’s the way it’s always been” is not a good argument for a policy to continue.

    Marriage equality is increasingly LESS divisive. Yesterday’s poll by PPP showed a net 10 point gain in support for it since October of 2011.

    The marriage between my wife and I just entered its third year. It has not been negatively impacted by same-sex unions AT ALL. Yesterday’s poll said 74% of Iowans held the same view. I’d love to hear a reason from the other 26%.

  • http://anziulewicz.livejournal.com PolishBear

    A “federal marriage amendment” MIGHT have had a chance for passage and ratification 30 years ago. No so today. The victories for marriage equality in Maine, Minnesota, Washington, and Maryland last November tell me one thing: Americans are learning to make better value judgments.

    Why is it that Straight couples are encouraged to date, get engaged, marry and build lives together in the context of monogamy and commitment, and that this is a GOOD thing … yet for Gay couples to do exactly the same is somehow a BAD thing? To me this seems like a very poor value judgment.

    Ask any Straight couple why they choose to marry. Their answer will not be, “We want to get married so that we can have sex and make babies!” That would be absurd, since couples do not need to marry to make babies, nor is the ability of even desire to make babies a prerequisite for obtaining a marriage license.

    No, the reason couples choose to marry is to make a solemn declaration before friends and family members that they wish to make a commitment to one another’s happiness, health, and well-being, to the exclusion of all others. Those friends and family members will subsequently act as a force of encouragement for that couple to hold fast to their vows.

    THAT’S what makes marriage a good thing, whether the couple in question is Straight OR Gay. It looks like American voters are starting to accept that.

    • 20-20 observer

      You, Mr. Polish Fella, might believe your friends and family members will subsequently act as a force, but this is wishful thinking, possibly criminal and and an ignorant idea. Friends and family have nothing to do with your family, unless you believe you are still living under the power and authority of your mom and dad, or HERS. Oh MY!!!. No act of “encouragement” will halt, let along slow a ‘no-fault’ divorce. Encouragement will not halt the law suit to dissolve your well meaning, but worthless vow that the state will dissolve against your will, or aid you by your hand. The vow is worthless by judicial fiat and civil marriage dissolution procedure.

      You better think a little bit more about your “family” and what it is you formed in compliance with and in full agreement of the state. You have a “civil state family”.
      You believe, I suspect, that you have been drafted into an egalitarian economic unit, serving the state, and you luv it, and maybe her too. That is essentially the “meaning” of “civil marriage”, and why your hetero-economic egalitarian family held together by friends and family is a silly idea and illogical. Why any homo would foresake individual sovereignty to climb into bed with another individual of the same sex to form an economic triad with the state is beyond me. Most homos understand this, and want nothing to do with associations involving the state that brings financial ruin to many. Civil marriages are a scam and a sham. Your desire to draft homosexuals into economic associations designed by lawyers to economically rape and pillage innocent parties is beyond me. Equalitarians such as yourself think it a great disservice and wrong to kill only jews during WWII, and the right answer would have been to kill everyone for the sake of equality.
      What rights did you acquire in your “civil marriage”?
      What rights are protected by the state, neighbors, friends and mommy when she serves you your walking papers? The right to be financially ruined, of course.

      • Baltimatt

        Gee, if marriage is that horrible, maybe we should abolish it entirely!

  • matt227

    That ship has sailed. The window through which the FMA could have passed closed in 2006 when the GOP Congress failed to enact it. In addition, no Democratic chamber will ever ratify such an amendment, so forget getting even close to 3/4 of the states.

    • Baltimatt

      Hi, Matt. Fancy meeting you here!

      You are right. Since one quarter of the states currently have or shortly will have same-sex marriage, it is highly unlikely a constitutional amendment will pass. Other states without SSM may also be unlikely to want to write a same-sex marriage ban into the Constitution.

      What will be gained by passing such an amendment? Will currently married couples have their relationships vanish, leaving them and their children vulnerable?

      The author of this piece seems concerned about freedom of religion and freedom of association, but has no problem trampling those rights for other people.

      • matt227

        Hi Hi. I’m guessing we got to this article the same way ;)

        I’m not sure the concerns for freedom are actually real, more like a smokescreen, or a cognitive defense mechanism. The amendment proposal is just another one of those legal potshots that NOM and its followers must pursue in order to remain relevant. No viable offensive strategy exists for them. So NOM does not become a solely defensive organization in slow and painful retreat, they will try “break outs” like this, but realists know such efforts are futile and ultimately egocentric.

      • Baltimatt

        I agree. Opponents of same-sex marriage will grasp at any straw, regardless of rationality, in an effort to roll back the clock. If a marriage amendment couldn’t make it in the last decade, it certainly won’t now.

        Of course, to them, the religious freedom argument is only to maintain their religious freedom while totally dismissing the freedom of others. And now they’re looking for a religious exemption to our civil rights laws. You can’t discriminate against an interracial or interfaith couple planning on getting married even if your religion is opposed to it. And of course, if we allow a religious exemption to the civil rights laws, that may very well allow people to discriminate against those pushing such a change.

        I’m not sure how you got here, but I’ve known of this site for years as I would get Google hits when looking for information on the marriage situation in Iowa. So I pop in every now and then to see what’s going on.

  • CAxlRose

    Bork wrote that book in 2003 when ZERO states had legalized same-sex marriage. Even the most ardent gay marriage opponents must concede that A LOT has changed in just 10 years, namely 13 states + D.C. that now have legalized gay marriage, not to mention Section 3 of DOMA which is now long gone.

    You can “call” for a federal marriage amendment and “renew” that call as many times as you feel is necessary. But you still have to live in a world of facts. The facts are you need a 2/3 majority vote in both the House AND Senate, as well as a state-by-state ratification in 38 states. Yes, THIRTY EIGHT states.

    Currently, only 34 states ban gay marriage (30 by constitutional amendment, 4 by statute). Thirteen states have legalized it, while the last three states (IL, NM, NJ) have no laws for or against gay marriage. However, two of those states (NJ and IL) have laws recognizing civil unions, so they count in favor of equality.

    In short, there’s NO way a federal marriage amendment will EVER pass. George W. Bush’s GOP-controlled House and Senate couldn’t even get the amendment out to the states back in 2006. How in the world do you think such an amendment would make it out to the states in 2013, in the face of the stunning progress that the gay rights movement has made?

    More importantly, can you please name the 38 states that you’re so certain would ratify such an amendment? You’re at least 4 states short at press time.

  • Billiam

    Actually, the Federal Gov’t should have nothing, zilch, nada, to do with marriage. Of course, society in general needs healthy marriages to survive. Marriage should be left to the individual States to decide, or the people. Problem is, once the Federal gov’t decides something is a ‘right’, then they also decide who gets squashed. Should they decide gay ‘marriage’ is a right, they’ll squash any who dissent. You’re naive if you think they won’t.

    • Baltimatt

      Well, thanks to DOMA, the federal government did decide to step into it by refusing in advance to recognize valid same-sex marriages that any states would allow.

      The federal government also decided the squash the opponents of interracial marriage, opponents of marriage for people with unpaid child support obligations, and opponents of marriage for incarcerated persons. Ouch, that squashing hurts!