Of Constitutional Amendments, Human Rights, and Same-Sex Marriages

• Author: M. Isabel Medina
• Position: Ferris Family Professor of Law, Loyola University New Orleans
• Pages: 459-475

Page 459

Ferris Family Professor of Law, Loyola University New Orleans, School of Law. Parts of this essay were presented at a symposium on Marriage Laws: The Effects of Recent Judicial Intervention Regarding Liberty and Marital Legislation at Tulane University School of Law on January 30, 2004, organized by the LSU and Tulane Chapters of the Federalist Society.

Let me not to the marriage of true minds Admit impediments.

-W. Shakespeare, Sonnet 116

Marriage is the legal recognition of human intimacy; it has endured throughout the ages. It has undergone a myriad of changes since the framing of the republic, and it has emerged, in modern times, as the basis for the family unit. ¹Marriage can protect and secure the values of community, autonomy, and sexual and emotional intimacy, for the individuals who choose to enter into it.² Many individuals prefer to raise children within the institution of marriage. Marriage, at times, has served to institutionalize and perpetuate gender bias in the legal system and in society.³ It has also served to protect or shield abusers and wrong-doers from the reach of the law.4Traditionally, civil marriage has been viewed as a relationship involving a man and a woman. ⁵Changing mores and attitudes, however, challenge that traditional understanding of marriage. These changes led the Massachusetts Supreme Court to hold in Goodridge v. Department of Public Health that Massachusetts could not deny Page 460 "the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry."⁶

Goodridge was preceded by the United States Supreme Court's decision in Lawrence v. Texas, ⁷which held that there is a realm of personal sexual intimacy and privacy protected from intrusion by the state such that the state may not criminalize adult consensual sexual intimacy and conduct within the home.⁸ The Lawrence opinion appeared to recognize its relevance to the issue of same-sex marriage; language in the opinion indicates, however, that, for some justices, marriage may be sufficiently distinguished from sexual intimacy in the home to allow states to prohibit same-sex couples from participating in the institution of marriage.⁹

Our society has recognized that individual human beings are entitled to the protection of the law in the establishment of an enduring and recognized intimate sexual, mental, and emotional relationship that constitutes that individual's family.10 Lawrence recognizes that the desire for and right to form an intimate relationship is not determined by one's sexual orientation.11Recognition of same-sex marriage requires no change to the substance of the marriage relationship; it merely requires that we shed the perspectives of entrenched gender roles for both men and women. Notwithstanding a constitutional command that government regulate human beings of both sexes as individuals and not on the basis of gender group norms or stereotypes, 12the struggle to ensure Page 461 that individuals will not be penalized for exhibiting behavior, conduct, or attributes associated with a different gender continues to pose a substantial challenge to our society.

The Federal Constitution emerged in the twentieth century as the guarantor of basic human rights. It should not be used, as it was in 1791, to perpetuate tyranny and deny certain human beings the exercise of basic human rights.13Whether viewed as preservation of a basic human right to pursue happiness through marriage or to be free from societal animus because of one's sexual orientation, it is difficult to justify prohibitions against same-sex marriage. Same-sex marriages involve protected conduct, a highly valued institution and relationships that cause no harm or injury to individuals or society at large.¹⁴

I Of Constitutional Amendments

The amendment process is a critical aspect of our constitutional framework. Its importance lies in providing a mechanism through which generations can continue to determine or test the legitimacy of our government, its protection of basic human rights and its continued viability for present times. Its importance also lies in providing a check to judicial review and the role that federal courts play in our constitutional scheme. 15The amendment process is a response to concerns that our human rights and legal norms are determined by an entity that is not politically accountable, and that this entity, populated by persons immunized from direct political accountability, has the power to overrule and declare null and void actions of the two elected branches.

Amendments are, in most cases, not necessary to secure continued governmental legitimacy or to effectuate change.16Judicial review exercised in constitutional interpretation mirrors the common law in its flexibility and adaptation to change. The Court's development of constitutional norms on race discrimination,¹⁷ Page 462 reproductive rights¹⁸, the death penalty¹⁹, and civil or criminal detention of persons²⁰ are clear examples of this flexibility and ongoing dialogue between Congress, the Executive and the Court. The power of judicial review has proved itself remarkably apt at accommodating constitutional change and modification of legal norms.

Moreover, it is impossible to divorce the interaction of judicial review, legislative enactments and executive initiatives in reflecting change in American society. One example is the development of a constitutional norm on sex discrimination. Passage of Title VII of the Civil Rights Act of 1964²¹, prohibiting discrimination in employment on the basis of the sex, preceded the Supreme Court's own adoption of a constitutional norm prohibiting such discrimination unless it was substantially related to accomplish an important, exceedingly persuasive, governmental interest.²²

Amendments that deprive individuals of human rights or affect their entitlement to individual rights are problematic. The essence of the Constitution was to establish the new republic as a government that would not trammel individual rights. In explaining and defending the constitutional framework, the framers of the Constitution consistently identified prevention of tyranny as the central aim of the drafters.²³ The inherent inconsistency in creating Page 463 a nation that would not tolerate tyranny at the hands of a national government, but would defer to such tyranny as condoned by state governments, was resolved in the aftermath of the Civil War with passage of the Thirteenth, Fourteenth and Fifteenth Amendments.²⁴

The Reconstruction Amendments were adopted to rectify the compromise on race and slavery reflected in the original Constitution and to formally reject the Supreme Court's Dred Scott v. Sanford decision interpreting the Constitution to deprive Congress of power to grant citizenship to slaves. ²⁵Those Amendments make it clear that the amendment process itself is essential to the Constitution's continued legitimacy. This second revolution established that the Constitution ensured that individuals were not to be subject to tyrannical rule or to deprivations of basic human rights at the hands of the states. It was not until the latter half of the twentieth century, however, that the Reconstruction Amendments' promise, to secure basic human rights to all persons in the United States, was realized, however imperfectly.²⁶ The nation's discourse on just what those basic human rights are and should be continues today.

It is possible to argue that amendments are, more than anything, a formal process, since their substance is subject to interpretation by the Supreme Court. An example of this phenomenon is the Court's treatment of section five of the Fourteenth Amendment as compared to its treatment of Congress' powers under the Commerce Clause.27But constitutional amendments have accomplished real substantive change in our society even if it was some time after their adoption that change was realized. Perhaps the most important role for the amendment process in American society today, thus, is that it stimulates continued debate and discourse on issues which are controversial and about which there is substantial dissent within the body politic. The wealth of amendments that have been introduced since the founding of the republic is testimony to the role of the constitutional amendment process in fostering and encouraging active Page 464 citizen participation in political, legal and governmental processes. Amendments have been proposed on child labor²⁸,abortion²⁹, the rights of crime victims³⁰, school prayer³¹, flag burning,³² the line-item veto,³³ a balanced budget, ³⁴and campaign reform.³⁵ None, including the Equal Rights Amendment, have been successful. ³⁶These efforts may be viewed as part of the ongoing national political and public debate on issues of public concern.

Most initiatives to amend the Constitution have failed in large part because of the absence of widespread support or consensus on the issues, or due to the flexibility of our other institutions. For example, the Supreme Court may often accommodate sufficient change to satisfy enough members of the body politic to thwart adoption of a constitutional amendment. This may explain, perhaps, the failure of the Equal Rights Amendment.³⁷ The process requires that a substantial majority of the population support the amendment before it becomes the law for all. The process provided in Article V begins when two-thirds of both Houses propose an amendment or the legislatures or conventions of two-thirds of the states call for a constitutional convention. Adoption requires ratification by threefourths of the states. We are a large and very diverse nation; more so now than at the framing. We, unlike most other countries in the world, have embraced and thrived on that diversity. ³⁸To...