The federal marriage amendment and rule by judges.

• Author: Duncan, Dwight G.

Marriage: the state or condition of a community consisting of a master, a mistress, and two slaves, making in all, two.

--Ambrose Bierce (1)

Marriage is a great institution, but I'm not ready for an institution.

--Mae West (2)

I do believe in the sanctity of marriage, I totally do. [But] I was in Vegas and it took over me.

--Britney Spears (3)

Goodridge v. Department of Public Health, (4) the bold Massachusetts decision requiring the state to recognize marriage between persons of the same sex, could well end up enshrining the traditional understanding of marriage in the Massachusetts Constitution, the United States Constitution, or both. The reason is that the public is generally against the reconfiguration of marriage, (5) all the more so when it comes by way of judicial flat on the slenderest of margins (4-3). Goodridge comes at a time of growing popular resistance to the judicial imposition of value judgments of elites.

In Canada, the Ontario Court of Appeal legalized gay marriage in Halpern v. Canada, (6) and the Canadian government elected not to appeal the decision to the Supreme Court of Canada but rather to propose enabling legislation to Parliament. In the United States, the Supreme Court decided in Lawrence v. Texas (7) to make sodomy a constitutional right, forbidding the criminalization of private sexual activity between consenting adults. Both these cases were cited favorably by the majority opinion in Goodridge.

On May 15, 2002, six Congressmen introduced the Federal Marriage Amendment in the House of Representatives. (8) While most Americans agree that marriage should only be between a man and a woman, (9) it will take repeated supermajorities to add the Federal Marriage Amendment to the United States Constitution: two-thirds of both houses of Congress and three-fourths of the states. (10) The fact that thirty-eight states have recently enacted Defense of Marriage Acts ("DOMAs") (11) puts the prospect of ratification by thirty-eight states within the realm of feasibility. Unfortunately, a two-thirds vote from the U.S. Senate will probably be more difficult to come by. (12)

Although various unsuccessful attempts had been made in the more or less distant past to amend the Constitution to deal with marriage, (13) the Supreme Court in the twentieth century included marriage as one of the fundamental rights guaranteed by the United States Constitution's Due Process Clause. (14) The implicit definition of marriage was always the union of one man and one woman. Reacting to the Halpern and Lawrence decisions, and bracing for the adverse ruling to come in Goodridge, Senate Majority Leader Bill Frist announced that he was supporting the Federal Marriage Amendment. (15) President Bush, for his part, indicated his support after the Goodridge decision, (16) and specifically endorsed the Amendment on February 24, 2004. (17)

What about the argument that this matter is best left to state law? Jonathan Rauch, writing in the Wall Street Journal, formulated just such a federalism argument:

For centuries, since colonial times, family law, including the power to set the terms and conditions of marriage, has been reserved to the states, presumably because this most domestic and intimate sphere is best overseen by institutions that are close to home.... Same-sex marriage should not be a federal issue. (18) It is certainly true that the United States Constitution does not contain the words "marriage" or "family." Nor, in its original version, did it contain the words "slaves" or "slavery." (19) In both instances, challenges to these domestic institutions generated political tensions that some sought to resolve by amending the federal constitution. Whatever the historical analogies, it does seem odd that the rhetoric for "same-sex marriage," which wraps itself in the language of the civil rights movement to extend certain understandings of freedom and equality to homosexuals, should now employ the language of "states' rights" to hold onto whatever judicially-acquired beachheads it has obtained in the states or will be able to obtain in them in the future.

Rauch's claim of exclusive state jurisdiction over the terms and conditions of marriage is false, however. It runs afoul of Loving v. Virginia, (20) which said states had no power under the Federal Constitution to prohibit interracial marriage. "Marriage is," according to the Court, "one of the 'basic civil rights of man,' fundamental to our very existence and survival." (21) Loving also called marriage "one of the vital personal rights essential to the orderly pursuit of happiness," (22) thus protecting it from infringement by state law.

In addition to finding the antimiscegenation law a deprivation of liberty without due process, Loving found that the law violated the equal protection clause of the Fourteenth Amendment. (23) Loving is a favorite case of advocates of same-sex marriage. Just as you should be able to marry the person you love regardless of race, the argument runs, you should be able to marry the person you love regardless of sex or sexual orientation. (24) Of course, if the proponents of this argument are correct in predicting a decision along these lines by the United States Supreme Court, then the right to same-sex marriage will be required by the Federal Constitution, notwithstanding state constitutions or state and federal laws to the contrary. The only way of decisively defeating such an outcome would be by means of a federal constitutional amendment such as the Federal Marriage Amendment.

The claim of exclusive state jurisdiction over the incidents of marriage is also contradicted by Griswold v. Connecticut, (25) which said that states had no constitutional power to prohibit the use of contraceptives within marriage. It runs afoul of those federal cases that refer to a "fundamental right to marry" and strike down state-imposed conditions on its exercise, such as Boddie v. Connecticut (26) and Zablocki v. Redhail. (27) Zablocki called the right to marry one of "fundamental importance;" a "part of the fundamental 'right of privacy' implicit in the Fourteenth Amendment's Due Process Clause." (28) While the opinion acknowledged that not all regulation of the incidents of marriage was necessarily subject to "rigorous scrutiny" and that "reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed," (29) that characterization did not apply to the state-imposed requirement that existing child support obligations be met before a person was allowed to marry, which was declared unconstitutional. (30) Similarly, Turner v. Safley (31) invalidated on constitutional grounds a state prohibition on prison inmates marrying.

The Federal Constitution, then, has expanded the circle of those who can legitimately marry under state law (people of opposite races, (32) prisoners, (33) deadbeat dads, (34) those unable to pay courts for a divorce from a previous spouse (35)), while also changing the understanding of what marriage entails (the right to contraception (36) and the unilateral right of the woman to abort (37)). It is at least forty years too late to claim that marriage is exclusively a state matter, or that "the power to set the terms and conditions of marriage ... has been reserved to the states." (38)

I have been involved in the fight over homosexual "marriage" ever since the Hawaii case in 1996, (39) when I filed an amicus brief opposing it. (40) In the 1999 Vermont case Baker v. State, (41) I filed a Brandeis brief analyzing the social science evidence, mainly on parenting, but also on the alleged historical precedents for same-sex marriage. (42) I was also an expert witness by affidavit in Halpern v. Canada in Toronto. (43) Apparently, as the court ruled in the face of my affidavit, I was not very persuasive. In the meantime, I co-authored a piece with Peter Lubin entitled Follow the Footnote or the Advocate as Historian of Same-Sex Marriage in the Catholic University Law Review, (44) which debunks some of the historical arguments made on behalf of same-sex marriage. More recently, I filed amicus briefs in both Goodridge v. Department of Public Health (45) in Massachusetts and the pending New Jersey case, Lewis v. Harris. (46)

This gives me an informed perspective to make the following not-exactly courageous judgment: we are now at an interesting crossroads in the debate over the marital status of homosexual unions. Up until now, the fight has been largely conducted at the state level, with homosexual advocacy groups like Lambda Legal Defense Fund and Gay and Lesbian Advocates and Defenders ("GLAD") bringing suit in state courts under state constitutional claims, and the state attorneys general and defenders of monogamous, heterosexual marriage trying to counter the state constitutional claims of liberty and equality. When homosexual marriage made progress in the courts, as in Hawaii and Alaska, supporters of traditional marriage successfully put forward referendums on state constitutional amendments, defining marriage as between a man and a woman, which passed overwhelmingly. (47) At the time of this writing, there was such an amendment pending in Massachusetts which, while reserving the term "marriage" for persons of the opposite sex, would grant all the legal incidents of marriage under state law to same-sex couples united in "civil unions." (48) The earliest it could go into effect, however, would be 2006, (49) and the Massachusetts Supreme Judicial Court in Goodridge gave the legislature only 180 days to "take such action as it may deem appropriate in the light of this opinion." (50)

As a defensive measure, thirty-eight states and the federal government have enacted Defense of Marriage Acts. (51) The Federal Defense of Marriage Act, enacted in 1996, while proclaiming that marriage for the purposes of federal law would apply only to male-female couples...