How to Protect Marriage: The Threat of Redefining Marriage to Include Same-Sex Unions Stems from Activist Judges, Not State or Federal Constitutions. Thus the Proper Solution Must Be to Limit the Courts

Article excerpt

Popular mythology holds that the only way to curtail the reckless adventurism of the Supreme Court and the rest of the federal judiciary is to amend the Constitution to undo bad decisions and to prevent the courts from making new ones. The myth ignores the founders' foresight, which provided a remedy, short of a constitutional amendment, to rein in a runaway judiciary. It is found in Article III, Section 2.

A most stunning and timely illustration of the misunderstandings surrounding this popular myth is the effort to amend the Constitution for the purpose of preventing the federal judiciary from declaring homosexual "marriages" to be constitutionally protected. Senate Joint Resolution 40, sponsored by Senator Wayne Allard (R-Colo.), would propose such an amendment to the Constitution. It is two sentences in length. The first one provides that marriage constitutes "a legal union between one man and one woman." The second declares that "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."

Speaking in support of S. J. Res. 40, President Bush declared: "A constitutional amendment should never be undertaken lightly, yet to defend marriage, our nation has no other choice." Mr. Bush is of course correct in saying that "a constitutional amendment should never be undertaken lightly," but is wrong in saying that our "nation has no other choice" and wrong in portraying S. J. Res. 40 as a workable solution.

Catastrophic "Solution"

To take effect, a constitutional amendment must be passed by both the House and the Senate by a two-thirds majority vote, and then ratified by three-fourths (38) of the states. Ratification is a lengthy, tedious process. The Founding Fathers purposely made amending the Constitution much more difficult than enacting legislation. They did not want the Constitution to be easily changed, and they wanted to allow time for careful thought and deliberation. Thus, even if the marriage amendment were the correct solution to the same-sex "marriage" problem, it is likely that it would not even be enacted until the federal courts have wreaked havoc on the Constitution again.

However, even if S. J. Res. 40 were to become part of the Constitution, its effect could be an explosive backfire. Marriage law, a matter now belonging exclusively to the states, would become part of the Constitution--and this would give federal courts an opportunity to redefine and reshape marriage as a part of federal law, thereby overriding state authority for marriage law. Amending the Constitution to define marriage is like using a stick of dynamite to extract a bad tooth; it is the wrong tool and the collateral damage is catastrophic.

"The powers delegated by the ... Constitution to the federal government are few and defined," James Madison noted in The Federalist, No. 45. "Those which are to re main in the State governments are numerous and indefinite." Marriage laws belong to the second category. The Founding Fathers wanted the federal government to exercise only those powers that could not be effectively handled by the individual states acting separately, and, in general, they wanted to keep government as close as possible to the people.

This separation of powers between the federal government and state governments --like the separation of powers among the three branches of the federal government -- provides an important barrier against an accumulation of power leading to tyranny. The earth-shaking issue regarding the marriage amendment is not the definition of marriage (we should all agree on that!) but preserving state jurisdiction over marriage so that the federal government does not interject itself even further into our lives.

Christian and religious organizations have put enormous pressure on the president to advocate S. …