Reaffirming Marriage: A Presidential Priority
Coolidge, David Orgon, Duncan, William C., Harvard Journal of Law & Public Policy
Marriage is always in the news. Lately, however, it seems to be a hotter topic than usual. Debates rage about the "marriage penalty" in the tax code and whether to reform divorce law. Local school boards ponder how to teach students about marriage. Governors have created marriage commissions, and scholars are giving the subject respectful attention.(1) The full title of a recent book by Linda Waite and Maggie Gallagher says it all: The Case For Marriage: Why Married People are Happier, Healthier, and Better Off Financially.(2)
Although marriage is primarily regulated by the states, it is hardly absent from federal law. Marriage has been the subject of a number of important decisions by the U.S. Supreme Court.(3) There are 1,049 federal statutes and many corresponding regulations relating to marriage, ranging from Social Security and taxes to education and immigration.(4) In 1996 Congress passed the Defense of Marriage Act, which addressed federal law and the Full Faith and Credit Clause.(5) By setting legislative, regulatory and funding priorities for his Administration, and taking advantage of the ever-present "bully pulpit," President Bush can certainly do much to promote marriage.(6)
Amid these positive developments and opportunities, however, there is a growing cloud on the horizon. Litigators and activist judges are attempting to redefine the meaning of marriage. Their effort is gathering steam, and led to skirmishes in the 2000 Presidential campaign. Both the vice-presidential debate(7) and the second presidential debate(8) included questions about "same-sex marriage" and "civil unions." Vice-President Gore also addressed the issue on MTV, strongly supporting equal treatment for what he called "civic unions."(9) In a follow-up to these exchanges, the Associated Press asked both candidates, "What federal legal rights, if any, should be extended to civic unions between gay partners?" In response, each issued an official statement.(10)
President Bush's Administration will be faced not only with opportunities to promote marriage, but also the need to reaffirm what marriage really is. The issue cannot be dodged. The only question is whether the next President will provide the leadership the American people need on this issue before it is decided by somebody else.
While many other issues related to marriage are extremely important, this Article will focus on the question of definition. In Part I we describe the campaign to redefine marriage through the courts using both the "front door" of same-sex "marriage" and the "back door" of "civil unions."(11) We also describe responses to that campaign on the state and federal level. In Part II we look at the consequences of redefining marriage for states, self-government, and marriage. In Part III we offer an agenda that the Bush Administration might undertake in order to reaffirm marriage. This multi-faceted agenda includes federal, federal-state, and international dimensions.
I. THE CAMPAIGN TO REDEFINE MARRIAGE
Groups of litigators and activists are attempting to redefine marriage through the courts.(12) In this way they hope to mandate the legalization of same-sex "marriage" or its equivalent without having to put the question squarely before the American people.(13) Difficult as it may be to believe, America is on the verge of legalizing same-sex "marriage" by way of a court-ordered redefinition of marriage analogous to Roe v. Wade.(14)
So far, there have been a number of attempts to remove this vital issue from the people and have it decided in the courts. In past decades these attempts were unsuccessful.(15) In the past decade the real "action" has been in Hawaii, Alaska, and Vermont.
A. The Front Lines: Hawaii, Alaska, and Vermont
The same-sex "marriage" debate will always be associated with Hawaii, because it was there that the effort to redefine marriage through the courts almost succeeded. …