The States Must Act to Protect Marriage

Posted: June 07, 2006
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This time is now for a Constitutional Convention.It's just silly" to pass the Marriage Protection Amendment, according to Senator Joe Biden of Delaware. It's just politics, he and many others claim; it's not needed, they say. Really? Let's take a look at the facts.

In 2003, the Massachusetts supreme court ruled that the Massachusetts constitution required the legalization of homosexual marriage. Since that date, many states (more than 18) have passed amendments to state constitutions that make it clear that, in that particular state, the institution of marriage is reserved to one man and one woman; homosexual (or incestuous or polygamous or any other) marriages are ruled out of bounds — and they were ruled out of bounds by the people, the sovereign in a democracy, acting through its elected representatives. So many calm, thoughtful conservatives said: No need to take further action; the people of the states can (in faithful Federalist fashion) protect marriage — if that is, being agnostic on the "values" question, they wish to do so.

But these reasonable voices were silenced when a federal district court in one of these states — Nebraska — decided that it didn't really matter what the people of Nebraska said (by 70 percent) about marriage; the state's marriage protection amendment was invalid under the federal Constitution. If this case ever makes it to the Supreme Court, the matter will be squarely before the Justices — does the US Constitution itself require that homosexuals can marry? It seems foolish (even silly) to me to wait for that decision given what Anthony Kennedy said for the Court in Lawrence v. Texas (2003): "our laws and traditions afford constitutional protection to personal decisions relating marriage . . . Persons in a homosexual relationship may seek autonomy for these purposes . . ."

Thus, the first dose of conservative wisdom proved false; it is not clear that federal courts will uphold a "state right" to define marriage.

Still these same thoughtful, careful, fair—minded conservatives argued that we could leave the matter up to the states. Even if states were not free to define marriage so as to exclude homosexuals, they would not have homosexual marriage imposed upon them (by immigrants from Massachusetts claiming state benefits reserved for "married" couples). The conservatives argued that, despite the existence of the Full Faith and Credit Clause of the Constitution (Article IV: "Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State"), the Defense of Marriage Act (Public Law 104—109: "No State . . . shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage . . .") spared one state from legally recognizing homosexual marriages from another.
But, then, lawsuits were filed in several states challenging DOMA. While there are no cases likely to reach the Court in the near year, it is inevitable that one day, one will. And who can confidently say that the Justices will uphold DOMA? Some brilliant conservative legal scholars argue that FFC will "trump," so to speak, DOMA because FFC requires a "valid" public policy opposition to an out—of—state judgment (like a marriage license) in order not to give it effect, and federal courts will find opposition based on the homosexuality of the "married" pair to be an "invalid" public policy reason.

So what are fair-minded, non-judgmental, conservatives to do now? Some of them argue that we can still wait until there is a decision by the Supreme Court, and then we can act. What do you think? Does that make sense to you? It makes little sense to me. A fair proportion of our citizenry has been brain—numbed by the Supreme Court (and its apologists in the media and in academia) into believing that the law is whatever the Supreme Court says it is. Over and over, they are told: Never mind what your deeply held beliefs are or what you think the Constitution means, we live in a state of judicial oligarchy; whatever they say goes.

Thus, if those who would defend marriage against its usurpers wait, they will find that, following a Supreme Court decision that legitimizes homosexual marriage, many of their fellow citizens will say, "That settles the matter." Time to amend, you ask. They will respond: "No; the Constitution protects homosexual marriage; we would not be so mean as to take it away."

No; the time to act is now.

The marriage amendment failed today. Senate Republicans today were unable to muster enough votes to stop Democrats from engaging in a procedural maneuver to keep the Senate from voting on the question: Should the Constitution be amended to define "marriage" as between one man and one woman?

You may be pardoned for wondering why the Republican-led Senate hasn't voted — again and again and again, if necessary — on an amendment to protect the most vital organ of society, the very institution upon which society is based, the most fundamental and universal institution (along with religion) ever, in the whole-wide world. You may be pardoned for wondering why the leadership of the Democratic Party opposes this most commonsensical of amendments. You may be pardoned for wondering why the President, who says this issue is vital to him, has not been making calls, even playing "hard ball" politics, to line up Senate votes for the MPA. You may even be pardoned for wondering why the White House press spokesman refuses to say whether passing an amendment to protect marriage is a priority for President Bush.

You may be pardoned for wondering about all of this, for, after all, politics, as they say, is politics. Games are played around important issues for reasons you and I will never understand. However, you may not be pardoned for wondering if we really need a marriage amendment. For now you know what the Supreme Court said in Lawrence above; you know that a Supreme Court decision legalizing (constitutionalizing) homosexual marriage, by striking DOMA or finding a liberty right under Due Process, is all but inevitable. You also know that resistance once that happens will be all but (politically) futile. In the end it is people like Joe Biden who are silly. Passing the marriage protection amendment is anything but silly.

Now is the time to act. It is time for you, a state citizen, to go into action. It is time for you to have your state legislators, following Article V of the Constitution, call for a constitutional convention to amend the Constitution to protect marriage. Start today.

Bill Saunders is the Senior Fellow and Director of the Family Research Council's Center for Human Life & Bioethics. The views expressed are his and are not meant to represent official institutional views of FRC.