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The Gay-Marriage Amendment: A Danger to the Constitution

by David E. Kyvig on Jun 29, 2004

David E. Kyvig

Current vocal advocates of a constitutional amendment banning gay marriage ought to consider the old Chinese adage, “Be careful what you wish for, because you may get it.”

A gay marriage amendment, if adopted, could produce unintended and fateful consequences for the U.S. Constitution. Some of the possible results are certain to prove distasteful to the proposal’s supporters, not to mention damaging to confidence in our constitutional system.

In amending the Constitution, unintended consequences should not be shrugged off lightly. Once an amendment is adopted, it can only be altered or removed by another amendment. Since a two-thirds vote in each house of Congress and ratification by three-fourths of the states is needed to approve any amendment, a small but zealous minority of Congress or state legislators can block the repair of a mistake. If we amend in haste, we will likely have to endure the result regardless of how much we come to regret it.

The nation’s constitutional history is full of instances when the outcome of amendments varied from the original intent of those who adopted it. The 1919 amendment prohibiting all commerce in alcoholic beverages provides the clearest example that a constitutional amendment can have profoundly important unintended consequences. Though outvoted by temperance proponents, a significant minority of Americans saw nothing wrong with drinking alcohol. After ratification, many citizens imbibed homemade concoctions or illegally purchased beverages. Bootleggers, indifferent to the dry law, seized the opportunity to profit by satisfying the nation’s thirst. The amendment failed in spectacular fashion to achieve the temperance movement’s desired result, as is also likely to happen with a gay marriage amendment.

Organizations quickly arose to seek prohibition’s repeal. They argued that the law simultaneously deprived the government of substantial tax revenue and created enforcement costs. They concluded that prohibition undermined general respect for law as well as the Constitution. Still, despite the widespread displeasure with its unanticipated results, repeal became possible only in 1933 through the extraordinary circumstances of the Great Depression and the momentary discrediting of the Republican Party that had sought to enforce the dry law.

Earlier, even the Bill of Rights and the Reconstruction amendments of the 1860s evolved in ways that their drafters could scarcely have imagined. So too did the seemingly simple 12th Amendment adopted in 1804 to remedy flaws in the presidential election system. It inadvertently reduced the vice presidency from a position held by the leader of the country’s second most powerful political party to one occupied by a secondary figure in the most powerful party. One of the nation’s two nationally elected officials thus became far less influential in policy decisions, which marked a setback for the democratic nature of the republic. The three most recent amendments, dealing with presidential succession, voting by 18-year-olds and congressional pay, have produced unexpected results as well.

An anti-gay marriage amendment is likely to generate many unintended consequences. Refusing gay unions legal sanction will certainly not prevent the formation of loving and enduring gay and lesbian relationships. As with prohibition, an amendment would not end the dispute over cultural values, but it would erode the always fragile sense that laws deserve respect and obedience regardless of personal preference.

In addition, regard for the Constitution as a protector of the inherent equal rights of all citizens would be weakened, at least among a significant portion of the American public. Some people will realize that other minority practices could face similar threats from a majority indifferent to the principle of equal protection for all.

Marriage itself could also be an unexpected victim of the anti-gay amendment. A declaration that government, not the individuals involved, has the authority to determine which couples may wed could well lead to a general questioning of the merits of obtaining state sanction for a personal relationship. Denial of spousal benefits to same-sex couples could stir a powerful argument that a wide range of matters from health care to hospital visitation rights to joint filing of income taxes ought to be fundamentally reconsidered if some couples were to be excluded from fair and equal protection of law. In the past Americans have displayed remarkable inventiveness in response to constitutional amendments, and there is every reason to expect they would do so again.

The record of attempts to amend the Constitution suggests that the odds against any proposal being adopted are very long. Of some 14,000 amendments offered in Congress, only 33 achieved the necessary two-thirds approval by both House and Senate, and a mere 27 have been ratified by three-fourths of the states. Enough of that handful have produced unforeseen results to justify caution in approaching constitutional reform.

In the end, those who oppose a constitutional amendment banning same-sex marriage, even when they personally oppose the practice, are prudent protectors of the Constitution. Those who call for the amendment without a thorough investigation of potential effects irresponsibly jeopardize faith in the U.S. constitutional system.


David E. Kyvig, Distinguished Research Professor at Northern Illinois University, is author of "The Age of Impeachment: American Constitutional Culture since 1960" (2008).