Abandoning Bedrock Principles? the Musgrave Amendment and Federalism
Bash, John, Harvard Journal of Law & Public Policy
Activist judges ... have begun redefining marriage by court order, without regard for the will off the people and their elected representatives. On an issue of such great consequence, the people's voice must be heard. If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process. Our nation must defend the sanctity of marriage.
--President George W. Bush, January 2004 (1)
In the wake of a surge of judicial activism aimed at creating a constitutional right to same-sex marriages, prominent conservatives and traditionalists have called for an amendment to the federal Constitution prohibiting same-sex marriages nationwide. (2) Representative Marilyn Musgrave of Colorado has introduced an amendment proposal that reads:
Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the Constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman. (3)
For those who view the separation of powers between states and the national government as fundamental to our constitutional structure, how should such a proposal be received? Is it the only tenable response to the usurpation of legislative authority by an increasingly activist, liberal, and secularist judiciary and the concomitant problems posed by the Full Faith and Credit Clause? Or is it a misguided and rash surrender of rightfully localized authority to the national government at the expense of core federalist principles?
The growing interest in a constitutional amendment prohibiting same-sex marriages was provoked by the Supreme Judicial Court of Massachusetts's decision in Goodridge v. Department of Public Health, (4) in which the court ruled that a state law prohibiting same-sex couples from obtaining a civil marriage violated the state constitution. Although the court did not consider whether the law violated the federal Constitution, it employed rational basis tests under both due process and equal protection jurisprudence. Employing reasoning similar to that of the Supreme Court in Romer v. Evans, (5) the court found that the only state interest served by excluding same-sex couples from marriage rights was an unwarranted animosity towards homosexuals. As the Massachusetts court wrote,
the absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual. (6)
It rejected a litany of rational bases proffered by the government and its amici, including the argument that the state's interest in promoting marriage is to foster stable environments for procreation and the rearing of children. (7)
From the perspective of originalism, the decision in Goodridge cannot be justified, no matter one's position on the desirability of same-sex marriage as a social policy. While proponents of an activist judiciary see the ruling as the first step in a "legal revolution," (8) those who subscribe to the belief that constitutional provisions should be interpreted in accordance with their framers' intent should shudder at the decision. The court's expansion of equal protection was "not an adjustment of an old principle to a new reality but the creation of a new principle by tour de force or, less politely, by sleight of hand." (9) No legislator who passed the equal protection and due process components of the Massachusetts Constitution could possibly have envisioned that they were legalizing same-sex marriage. (10) The court created a new law that was never voted on, that was never debated in the halls of a legislature, and that now requires a state constitutional amendment to repeal. …