Marriage Amendment Miscue

Article excerpt

Byline: Bruce Fein, SPECIAL TO THE WASHINGTON TIMES

The Senate Judiciary Committee, prodded by President Bush, approved the wrong Federal Marriage Amendment (FMA) last week. The right amendment would have entrusted exclusively to Congress and state legislatures the decision whether to recognize same-sex "marriage." In contrast, the wrong FMA precludes legislative bodies from recognizing same-sex unions irrespective of majority sentiments. It amends the U.S. Constitution to impose a nonrecognition requirement on every state and the national government even if majorities in Congress and state legislatures favor recognition.

Rule by the majority is the prevailing constitutional norm. Limited exceptions are made to check abuses against discrete and insular minorities or legislative rashness, for example, the Bill of Rights, the presidential veto, and small state overrepresentation in the Senate. The wrong FMA violates the majority rule presumption without justification. Opponents of same-sex "marriage" are politically powerful and socially dominant. At present, they are a decisive majority, which explains a recent flurry of amendments to state constitutions to forbid recognition of same-sex "matrimony." Its detractors need no constitutional protection against themselves in legislative chambers or popular referenda.

The wrong FMA also weakens attachments to traditional marriage. Legislative struggles deepen convictions and creeds. Relying on the Constitution as a surrogate risks losing public support. Think of Roe v. Wade. Pro-choice organizations lost ground to their pro-life rivals by depending on abortion decrees of the Supreme Court in lieu of arguing their case before legislatures and the public at large.

The wrong FMA insults the adage that the science of government is the science of experiment. It prevents experimentation among the states in recognizing nontraditional marriages without danger to the entire nation. (The Constitution combined with the Defense of Marriage Act entitles each state to decide whether to recognize same-sex "marriages" consummated in a sister jurisdiction). Opposition to same-sex "marriage" pivots partly on speculation over its influence on health or procreation. Permitting a jurisdiction like Massachusetts to embrace same-sex "marriage" would make possible a more reliable assessment of social consequences.

Constitutional amendments customarily modify the allocation of political power and participation as opposed to engrafting social or economic policies. The Civil War Amendments, the Income Tax Amendment, the direct election of U. …