The Federal Marriage Amendment and Rule by Judges
Duncan, Dwight G., Harvard Journal of Law & Public Policy
Marriage: the state or condition of a community consisting of a master, a mistress, and two slaves, making in all, two.
--Ambrose Bierce (1)
Marriage is a great institution, but I'm not ready for an institution.
--Mae West (2)
I do believe in the sanctity of marriage, I totally do. [But] I was in Vegas and it took over me.
--Britney Spears (3)
Goodridge v. Department of Public Health, (4) the bold Massachusetts decision requiring the state to recognize marriage between persons of the same sex, could well end up enshrining the traditional understanding of marriage in the Massachusetts Constitution, the United States Constitution, or both. The reason is that the public is generally against the reconfiguration of marriage, (5) all the more so when it comes by way of judicial flat on the slenderest of margins (4-3). Goodridge comes at a time of growing popular resistance to the judicial imposition of value judgments of elites.
In Canada, the Ontario Court of Appeal legalized gay marriage in Halpern v. Canada, (6) and the Canadian government elected not to appeal the decision to the Supreme Court of Canada but rather to propose enabling legislation to Parliament. In the United States, the Supreme Court decided in Lawrence v. Texas (7) to make sodomy a constitutional right, forbidding the criminalization of private sexual activity between consenting adults. Both these cases were cited favorably by the majority opinion in Goodridge.
On May 15, 2002, six Congressmen introduced the Federal Marriage Amendment in the House of Representatives. (8) While most Americans agree that marriage should only be between a man and a woman, (9) it will take repeated supermajorities to add the Federal Marriage Amendment to the United States Constitution: two-thirds of both houses of Congress and three-fourths of the states. (10) The fact that thirty-eight states have recently enacted Defense of Marriage Acts ("DOMAs") (11) puts the prospect of ratification by thirty-eight states within the realm of feasibility. Unfortunately, a two-thirds vote from the U.S. Senate will probably be more difficult to come by. (12)
Although various unsuccessful attempts had been made in the more or less distant past to amend the Constitution to deal with marriage, (13) the Supreme Court in the twentieth century included marriage as one of the fundamental rights guaranteed by the United States Constitution's Due Process Clause. (14) The implicit definition of marriage was always the union of one man and one woman. Reacting to the Halpern and Lawrence decisions, and bracing for the adverse ruling to come in Goodridge, Senate Majority Leader Bill Frist announced that he was supporting the Federal Marriage Amendment. (15) President Bush, for his part, indicated his support after the Goodridge decision, (16) and specifically endorsed the Amendment on February 24, 2004. (17)
What about the argument that this matter is best left to state law? Jonathan Rauch, writing in the Wall Street Journal, formulated just such a federalism argument:
For centuries, since colonial times, family law, including the power to set the terms and conditions of marriage, has been reserved to the states, presumably because this most domestic and intimate sphere is best overseen by institutions that are close to home.... Same-sex marriage should not be a federal issue. (18)
It is certainly true that the United States Constitution does not contain the words "marriage" or "family." Nor, in its original version, did it contain the words "slaves" or "slavery." (19) In both instances, challenges to these domestic institutions generated political tensions that some sought to resolve by amending the federal constitution. Whatever the historical analogies, it does seem odd that the rhetoric for "same-sex marriage," which wraps itself in the language of the civil rights movement to extend certain understandings of freedom and equality to homosexuals, should now employ the language of "states' rights" to hold onto whatever judicially-acquired beachheads it has obtained in the states or will be able to obtain in them in the future. …