March 4, 2004
Opinion/Editorial (page 9)
President Bush has proposed a Constitutional amendment defining marriage solely as the union of one man and one woman. The proposed amendment extends [not my word] to assert that no law or constitution, at either the state or federal level, “shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.” Legal scholars are in disagreement as to what exactly that second part means, but many worry that it would prohibit states from recognizing civil unions. The President stated that the amendment would, “fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage.” Leaving aside all the problems inherent in “separate but equal,” there is no guarantee that the President will not change his mind about what the amendment means or that courts will not interpret it differently.
In a letter to www.AndrewSullivan.com on February 26, 2004, one lawyer expressed concern about the implications of including a definition of marriage in the constitution. This lawyer suspects that it could completely redefine the powers of the federal government. The U.S. Constitution articulates no direct [i said “contains no express”] right to privacy, but the Supreme Court has cited the lack of regulation of intimate relationships and the protections of the Bill of Rights as the basis for an inference of the right to privacy. “By including a provision regulating the most intimate of relationships into the Constitution, the traditional analysis that the court has used to limit government power will be fundamentally changed and the right to privacy, if it is not destroyed completely, will be severely curtailed,” the lawyer argued. It may not play out like that, but the mere possibility should give pause to anyone who values individual freedom.
Thankfully, the amendment is not likely to make it through the Senate. Josh Chafetz, a 2001 Rhodes Scholar and graduate student in politics at Oxford, has been researching the stances of the current U.S. senators on proposed constitutional amendments seeking to codify some definition of marriage as limited to heterosexual unions (www.oxblog.blogspot.com, February 25, 2004). Assuming that the Senate will vote consistently with its records, there are currently too many senators opposed for the amendment to pass.
This amendment goes against the conservative ideals of limited government and states’ rights. If it were to pass, it would be the only Constitutional amendment except for Prohibition to limit the freedoms of U.S. citizens. And we all know how well Prohibition worked out. Constitutional amendments have been proposed opposing everything from the Dred Scott decision to flag-burning. Certainly no one regrets overturning Dred Scott, but tampering with this basic document is not something to be taken lightly, and most legislation of social change should happen elsewhere.
In his statement, President Bush expressed worry that the Full Faith and Credit clause of the Constitution, which makes every state accept "the public Acts, Records, and judicial Proceedings of every other State," would be used. However, the courts have already ruled, way back in the time of the interracial marriage debates, that the clause does not apply to marriages. Besides, the federal Defense of Marriage Act (DOMA) passed by President Clinton assures that no state will be forced to recognize same-sex marriages performed by other states. Neither the thirty-eight states with DOMAs of their own nor any other states will be required to recognize same-sex marriage licenses granted by other states. Same-sex marriage is an issue that should be determined on a state by state basis.