The Growing Threat of Same-Sex ‘Marriage’ and the Dilemma of the Federal Marriage Amendment     8/13/2003
By Lynn D. Wardle

Many leaders in America are talking about a constitutional amendment to stop same-sex “marriage.” They deserve credit for recognizing the seriousness of the threat that exists to the institution of marriage.

State courts in Hawaii, Alaska and Vermont have already ruled in favor of same-sex marriage, though the people of Hawaii and Alaska reversed the rulings by constitutional amendment. Gay activists currently are asking courts to order the legalization of same-sex “marriage” in cases in Massachusetts, New Jersey, Indiana and Arizona.

The U.S. Supreme Court decision this summer in Lawrence v. Texas holding that state laws banning sodomy are unconstitutional contains a lot of dangerous dicta about sexual privacy. The Court declared that adults have an unwritten constitutional privacy right to engage in sex outside of marriage, and even compared homosexual relations to marriage. That will encourage more and more vigorous claims for same-sex "marriage" and which courts sympathetic to same-sex “marriage” may use to justify orders legalizing same-sex “marriage.”

So the threat of judges ordering same-sex "marriage" is very real and very grave.

Also, increasingly, very liberal legislatures (especially in Vermont and recent efforts in California), have legalized same-sex “marriage” with another name, called “civil unions” or “domestic partnerships.” Gay and lesbian couples from other states have gone to Vermont to register their “civil unions” and returning to their home states have demanded that those states recognize the Vermont civil unions as (or as equivalent to) marriages.

The legalization of same-sex “marriages” (or marriage-like “civil unions” or “domestic partnerships”) would severely damage the public institution of marriage. It would send a false message that same-sex unions are equivalent to marriage, that same-sex relations and marriage contribute equally to society and provide equal potential for individual and social integrity, stability and happiness. It would convey the false message that whatever private sexual relationships adults choose deserve the same legal treatment as traditional marriages. Legalizing same-sex “marriage” would create enormous conflict and confusion in the law and among legal systems.

Children deserve to be reared in marriage-based homes, by a mother and a father, not by two gay men or two lesbian women who insist that their sexual relationship be labeled a “marriage.” Society needs to reaffirm and strengthen marriage, not to weaken it by creating counterfeit alternatives.

Thus, there are good reasons to try to protect marriage. Some propose to amend the U.S. Constitution to ban same-sex "marriage."

However, the greatest immediate problem is interpretations of state constitutions, not the U.S. Constitution. No court has yet interpreted the U.S. Constitution as requiring the legalization of same-sex "marriage," and many courts have rejected that claim. The Vermont, Alaska and Hawaii courts that ruled in favor of same-sex "marriage" did so by interpreting their state constitutions, not the U.S. Constitution. Even in the Lawrence case, the majority opinion distinguished marriage laws from the criminal law prohibiting sodomy that it held was unconstitutional, and the concurring opinion stated that marriage laws barring same-sex couples do not violate the U.S. Constitution (14th Amendment). So perhaps state, not federal, constitutional amendments are needed first.

Also, Congress and 37 states have enacted laws (called DOMAs for “Defense of Marriage Act) which provide that even if same-sex "marriages" are legalized in some states, they will not be recognized in those other states or in federal law. Those laws allow each state to decide for itself whether to legalize same-sex "marriage," by barring the forced “importation” of same-sex "marriage" from one state to other states.

Thus, while the threat to marriage is very real, a U.S. constitutional amendment may not be necessary yet. If the U.S. Constitution continues to be interpreted as not mandating legalization of same-sex "marriage," and if those DOMAs are upheld and enforced, amending the U.S. Constitution may be unneeded. Constitutional federalism and judicial restraint may provide the best remedy if courts will respect and enforce those principles.

However, it is wise to begin now to consider what kind of constitutional amendment might be drafted, in case the Supreme Court interprets the Constitution as mandating legalization of same-sex "marriage," or as invalidating federal or state DOMAs. The drafting of a constitutional amendment to protect marriage requires a lot of care.

For example, the proposed Federal Marriage Amendment (FMA) has been introduced in Congress. It provides that “Marriage in the United States shall consist only of the union of a man and a woman,” and it prohibits courts from “requir[ing] that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.” The FMA would constitutionally outlaw same-sex “marriage” and bar courts from giving same-sex couples the benefits or legal status of marriage. That would do much good.

But some think the FMA might not be fully effective to protect marriage because it does not prevent legislatures or executives from conferring marital benefits or status on couples. (For example, the people of California by ballot Prop 22 overwhelming voted to bar same-sex "marriage," yet the California Legislature and governor have since extended many marriage-like benefits and status to same-sex domestic partnerships. So merely outlawing same-sex "marriage" may not be sufficient.)

Also, the FMA does not bar courts from giving those benefits to individuals, or interpreting other sources of law, or granting other relief that would have the same effect. It does not reject the Lawrence decision that states may not prohibit sex outside of marriage.

Some think the FMA also may do too much because under the Tenth Amendment the definition of marriage has been a matter usually reserved for the states, not the federal government, to decide. The FMA makes part of the definition of marriage an issue of federal constitutional law.

That shift in governmental power, from the states (where opponents of same-sex "marriage" have succeeded in defeating same-sex marriage in most states where it has been proposed) to the national government (where the gay and lesbian lobby have more influence) could do more harm than good to the cause of protecting marriage. One bad federal policy has more potential for harm than a patchwork of state policies in which each state is free to decide its own policy for itself.

The constitutionalization of marriage also will give courts more control of the issue. Turning the definition of marriage over to the federal government and courts may be like asking the fox to guard the henhouse.

Finally, it could damage the defense of marriage to promote an amendment if it is unlikely to pass Congress (by two/thirds vote in each house) or to be ratified by the 38 states. A failure could embolden more radical judicial rulings and marriage-devaluing legislation.

Thus, leaders are wise to call attention to the serious threat of same-sex "marriage." Constitutional principles of federalism and judicial restraint should prevent forcing same-sex "marriage" on or among the states. Gay "marriage" advocates and courts that brush aside those “parchment barriers” may force the country into a terrible battle over amending the Constitution to defend marriage. If a constitutional amendment is necessary, finding the right approach to protecting marriage will require great care, and timing will be critical.

Lynn D. Wardle is a Professor of Law at Brigham Young University School of Law. The views expressed herein are his own. Wardle can be reached by e-mail at lynn_wardle@byu.edu or wardlel@lawgate.byu.edu. His phone number is (801) 422-2617 and his regular mail address is: 518 JRCB, BYU, Provo, UT 84602.

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