In June, after the Supreme Court found anti-sodomy laws unconstitutional in Lawrence v. Texas, Republican Sens. William Frist of Tennessee and Rick Santorum of Pennsylvania endorsed a proposed constitutional amendment defining marriage as the union of a man and woman. Their impulse to protect traditional marriages may seem reasonable, but it’s a bad idea.
Why? Because it would write into the Constitution a doctrinal statement on a matter marginal to the Constitution’s purpose and deny a benefit of citizenship to some American citizens.
The Constitution’s authors made changing it difficult to shelter it from such bad ideas. The U.S. Constitution, like all others, frames a structure of government and defines the appropriate relationship of citizens to it. Amending the Constitution requires that a proposed amendment be approved by two-thirds of each house of Congress. It’s then a matter for the states, three-fourths of which, acting either through state legislatures or specially called state conventions, must approve the amendment before it’s ratified. Surviving that ordeal is so difficult that we have amended the Constitution only 27 times in 215 years.
Only once has an amendment concerned a social issue marginal to the Constitution’s framework of government and the citizen’s relation to it. The 18th amendment, ratified in 1919, banned the sale of alcoholic beverages in the United States. Subsequent experience with constitutionally mandated sobriety showed the folly of writing marginal social values into the Constitution. Americans learned a lesson from that and revoked the 18th in a 21st amendment in 1933. Such basic values as the wrongfulness of murder or the immorality of prostitution aren’t and shouldn’t be embedded in constitutional amendments. Ordinary statutes do that work.
Some states burden their constitutions with all sorts of provisions to establish law on this or that. Alabama is the most notorious example. Adopted in 1901, Alabama’s constitution has 287 Sections grouped into 17 Articles. Subsequently, the state has added 706 amendments to an already cumbersome document. The amendments intrude on local governance in hundreds of ways, from regulating bingo games in the town of Jasper to providing for the compensation of the Judge of Probate in Barbour County. As a result, Alabama’s constitution is an embarrassment to the state.
The senators’ impulse to protect traditional marriage is a conservative reaction Lawrence v. Texas. Bastions of conservative opinion from the Vatican to National Review and the Family Research Council have joined the backlash. President George W. Bush says that he supports the codification of a traditional definition of marriage and is having executive branch attorneys look into doing it. That’s gratuitous for two reasons. Such a definition is already in the Defense of Marriage Act passed by Congress and signed by President Clinton in 1996. Apart from that, the Constitution gives the executive branch no role to play in amending the Constitution.
Amending the Constitution with a definition of marriage as the union of a man and woman is a vote of no confidence in a Supreme Court that in Lawrence found that state sodomy laws are unconstitutional by a six to three vote. Four of the six-member majority were Republican appointees to the Court. Another Republican appointee, Justice Clarence Thomas, who voted with the minority, said that had he been a state legislator rather than a judge he would have voted against Texas’s sodomy law. Thomas is a defender of states’ rights on the Court and has signaled in an opinion in United States v. Lopez that he believes marriage is a matter of state law. If the Defense of Marriage Act faces a constitutional challenge, Thomas may vote against it as an intrusion on the prerogatives of the states.
In any case, we should be skeptical of proposals to use the Constitution to protect traditional marriage from Supreme Court decisions we don’t happen to like. My marriage to a woman would not be diminished by extending our legal rights as a married couple to a same-sex couple. Attempting to exclude them from the legal rights of marriage runs directly contrary to the values affirmed by our amending process. Ten of the 27 amendments to the Constitution were adopted to protect citizens’ rights. Five other amendments were adopted to extend those rights to people who had been excluded from full citizenship. We have never amended the Constitution to prevent citizens from full access to the pursuit of happiness. Amending the Constitution to protect traditional marriages from phantom fears is a bad idea. Backlash is a sorry reason for doing it, one unlikely to yield good constitutional law.
Ralph E. Luker, an Atlanta historian, is co-editor of the first two volumes of The Papers of Martin Luther King and a writer for the History News Service.
