GAY AND LESBIAN FAMILIES

Defending the Constitution

The Truth About the Anti-Family Constitutional Amendment 

The anti-family Constitutional amendment is a misguided solution in search of a problem. The 1996 Defense of Marriage Act specifically states, "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state, territory, possession, or tribe, or a right or claim arising from such relationship." The Defense of Marriage Act is the law of the land and no court in any jurisdiction, at any time, in any case, has ruled otherwise. James Madison wrote in Federalist 49 that the Constitution should be amended only on, "great and extraordinary occasions." Our Constitution should not be amended solely on the basis of fears about what some unknown judge might rule in some unknown case at some unknown time.

The amendment is overly broad. The proposed amendment is overly broad and seeks to outlaw not only same-sex marriages, but also civil unions and possibly even domestic partner benefits. Contrary to what amendment backers are saying, the language is clear in the amendment.

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any state, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.

The language makes it clear that civil unions created through the Constitutional process, such as those proposed in Massachusetts, will not be permitted. Additionally, other civil union legislation and even domestic partner benefits may be threatened. The amendment1s drafters do not support civil unions and are not going to support any legislation that does. It is a classic Trojan horse. As a party that believes that America is too litigious, this language will lead to a glut of lawsuits by individuals and groups that will challenge any benefits granted to same-sex couples by voters or legislators.

As reported in The Washington Post, two of the amendment's principal authors, Professors Robert George of Princeton and Gerard Bradley of Notre Dame Law School, have made it clear that future courts would have to "interpret the amendment to protect not just the word 'marriage,' but also its essential meaning -- in the same way that, if the Constitution forbade states from creating navies, they clearly could not establish 'flotillas' or 'armadas,' either."

The Washington Post also reported that "[i]n an interview George contended that marriage, at its legal core, is a sexual union, and that the amendment would bar states from extending the legal benefits of marriage to gay couples, or anyone else, based on the presumption that they have a sexual relationship outside of marriage."

This amendment tramples on the principles of federalism and is an unprecedented incursion into state affairs. Two hundred and twenty-five years of history show that the recognition and protection of families is an issue best handled by the states. Members of the Republican Party have consistently advocated the importance of state and local governance. Rightly so, the GOP has railed against federal mandates and requirements. Now some in the party want to throw federalism out the window.

During the 2000 Vice-Presidential debate, Dick Cheney responded to a question about how same sex relationships should be recognized by government, "[i]t's really no one else1s business in terms of trying to regulate or prohibit behavior in that regard. I think different states are likely to come to different conclusions, and that's appropriate. I don1t think there necessarily should be a federal policy in this area." Bob Barr, author of the 1996 Defense of Marriage Act, agrees with Mr. Cheney, "[t]he vice president is right. There shouldn't be a constitutional definition of marriage. The federal government can set down a baseline - already in place with the Defense of Marriage Act - but states' rights demand that the specific boundaries of marriage, in terms of who can participate in it, be left up to the states."

The Full Faith and Credit Clause does not necessarily extend to same-sex marriage. Proponents of amendment have been trying to scare up support for this amendment by saying the Constitution's Full Faith and Credit Clause will force states to recognize marriages performed in other states. The fact is, no matter what happens in Massachusetts, other states will not be forced to recognize same-sex marriages under the law as it stands today. The United States Supreme Court has specifically recognized a public policy exception to the Full Faith and Credit Clause. Constitutional law expert Bruce Fein wrote in The Washington Times (9/9/03), "Under the Full Faith and Credit Clause, as interpreted by the Supreme Court in Sun Oil Company v. Wortman (1988) and Pacific Employers Ins. Co. v. Industrial Accident Commission (1939), no state would be compelled to recognize same-sex marriages authorized by a sister state." The drafters of the Defense of Marriage Act specifically recognized this exception and drafted the Defense of Marriage Act to fit within this exception. No court in any jurisdiction, at any time, in any case, has ruled otherwise.

No amendment to the Constitution has ever been used to discriminate against or marginalize any category of citizens. Our sacred Constitution must be defended. This would mark the first time a Constitutional amendment has been used to discriminate against a segment of the American population. Whether it is abolishing slavery, giving citizenship to freed slaves, allowing women and young people the right to vote, or limiting the scope of government, amendments most often have been used to spread the benefits of liberty to a larger segment of the population. This proposal would be the first time a Constitutional amendment has targeted a segment of the American population for exclusion and discrimination.

The Constitution should never be used as a political tool for divisive social engineering. "Amending the Constitution to define marriage as between a man and a woman would be unwise...Constitutionalizing social policy is generally a misuse of fundamental law." - George Will, Syndicated Column, November 23, 2003. Chuck Muth, former Executive Director of the American Conservative Union, has written, "[t]he Constitution was never intended to serve as a tool of social engineering. If conservatives thought it was wrong to use a Constitutional amendment to codify equal rights for my mom, my sisters, my wife and my daughters, why is it now OK to tinker with it to define marriage?"

The Constitution should not be used as a means of deciding important debates about public policy issues. The Constitution should not be used as a way to gauge public opinion trends on contentious issues. Should we alter the Constitution every time public opinion changes? Such an approach did not work 80 years ago with prohibition, and it would not work here either.

The Amendment eliminates the power of future majorities. This amendment would do something unprecedented in our history—it prevents a future majority's ability to extend rights to more citizens. Proponents of the amendment have been speaking against "judicial tyranny." The reality is that this amendment would open the door to such a tyranny by preventing the majority from allowing civil unions, marriage, or, potentially, any domestic partner benefits in the future. Instead of government for the people and by the people, the amendment will impose government by the courts by allowing the will of the voters and their elected representatives to be defeated by the judiciary. For example, 20 years from now, if Vermont legislators want to legalize same-sex marriage, this amendment wouldn1t allow them to do so.

America's leading constitutional and legal scholars caution against amendments like this one, saying that, "[t]he Constitution's unifying force would be destroyed if it came to be seen as embodying the views of any temporarily dominant group. It would be a cardinal mistake to amend the Constitution so as to effectively 'read out' of our foundational charter any segment of our society." - From "Great and Extraordinary Occasions: Developing Guidelines for Constitutional Change," a publication of Citizens for the Constitution.

There is a generational divide on this issue. Young voters are much more likely to support civil unions or civil marriage equality. They are also much more likely to oppose the amendment. In the next 5-10 years, the dynamics of this issue will shift greatly and solid majorities will support equality for gay and lesbian Americans. Future generations will look back on this amendment effort and wonder how it could have happened. Do you want to be on the wrong side of history?

back to top   |  Back to main defending the constitution