Early 2010 brought encouraging signs for defenders of marriage and the family. The repeal of homosexual “marriage” in Maine extended a telling winning streak: In every state where voters have been asked to decide, they have preserved the definition of marriage as the union of one man and one woman (including Arizona, where they narrowly rejected a ban on same-sex “marriage” in 2006 only to easily pass one two years later). Meanwhile, New York’s Legislature failed to approve homosexual “marriage,” and the efforts to smuggle it through the New Jersey Legislature before defeated Gov. Jon Corzine left office died.
Of course, the picture is mixed, too. Homosexual “marriage” became legal this year in New Hampshire and Washington, D.C., where a local judge has blocked the citizenry from voting on it. Other states, like Massachusetts, Vermont and Connecticut, have already used judicial and legislative fiat to establish — make that impose — these “rights.”
Still, the popular effort to defend marriage can rightly be called a success, which is why the time is right to remember that no team wins only by playing defense. The time has come for marriage advocates to go on the offense.
It’s very clear that, when allowed to express their views, the American people have consistently voted to protect marriage. That’s one reason, probably, why the D.C. City Council wants to prevent voters in Washington from being able to vote on their legalization of homosexual “marriage.” Homosexual “marriage” has been imposed on Americans primarily by activist state courts and some state legislatures (usually acting with a judicial gun pointed at their heads). They are abetted by certain elite opinion makers who claim “it’s only a matter of time” before “heterosexual discrimination” is eradicated.
So how do we go on the offense?
Voters in 31 states have legally defined marriage as a union of a man and a woman. That’s almost two-thirds of the states. And two-thirds of the states are just what’s needed to propose a constitutional amendment.
There are two ways to amend the U.S. Constitution. The method used to date requires Congress, by two-thirds vote in each house, to propose an amendment to the states. Once proposed, three-fourths of the states — 38 of 50 — must ratify it.
The likelihood of any pro-marriage amendment passing the current 111th Congress is nil. There would not be enough votes in either the Senate or the House to enact such an amendment; nor would House Speaker Nancy Pelosi or the Senate’s majority leader, Harry Reid, let the Democratic majority, which would likely oppose such an amendment, go on record in an election year on such a controversial issue.
Luckily, the Constitution allows the people to pressure and ultimately bypass a recalcitrant Congress.
If two-thirds of the state legislatures call for a constitutional convention for proposing amendments to the Constitution, the amendments proposed would be submitted directly to the state legislatures for their ratification without further congressional action. Yes, 38 states would have to ratify any such amendment, but presumably it would already have plenty of momentum if proposed by 34 states.
There would likely be enormous resistance to such a proposal. There hasn’t been a constitutional convention since 1787, when we wrote our present Constitution. Opponents would warn about a “runaway” convention that would strip us of constitutional rights. They are likely to claim that a proposed marriage amendment would represent the first time “rights” were taken away. Washington, especially with its current leadership, will vehemently oppose losing power over controlling the amending process.
But the beautiful thing is that a convention doesn’t necessarily have to work. If enough momentum were stirred up so that it appeared that the states might call for such an amendment and bypass Congress, two things would happen. First, the question of protecting marriage would land front and center on the congressional agenda — even if Pelosi and Reid don’t want it there. Every incumbent would have to say where he stood: Would he allow the people, through the ratification process, to protect marriage through constitutional amendment?
With that kind of momentum, candidates running for Congress would have defense of marriage as a talking point this year. It would also force the issue to the forefront in a Republican Party where there are still powerful forces that want a “big tent Republicanism” that is economically conservative but socially licentious.
Imagine the energy that would be generated by forcing the discussion of marriage right onto the congressional agenda in 2010, just as control of the Senate and House may be up for grabs.
President George W. Bush urged Congress to pass such a constitutional amendment in 2004. The amendment went nowhere, in part because many Democrats covertly supported homosexual “marriage,” in part because Republicans wanted to avoid controversy, and in part because both sides found it convenient to use the excuse of being “moderate” and claiming that there was no reason to “federalize” the question. Why change the Constitution, they asked, when a simple law might be enough? The result was the 1996 Defense of Marriage Act (Doma).
The past six years have shown just how far the legal culture has deteriorated. Absent a federal constitutional prohibition, state courts have freely invented a right to homosexual “marriage” in their state constitutions. Doma itself is insufficient, for two reasons. One, what one Congress enacts, another can repeal. And two, because a constitutional amendment creates an ethos — a mindset, a legal culture — that makes its violation far more difficult.
The pro-life struggle should be illustrative. Absent a human-life amendment, pro-lifers have spent 37 years fighting incremental battles about important but secondary issues — banning partial-birth abortions, limiting taxpayer funding of abortion or protecting the rights of parents vis-à-vis their minor daughters. We have won many small victories, but the corrupting effects of Roe v. Wade have so metastasized in the American legal system that even these incremental victories remain tenuous and under constant assault.
What we need is a clear resolution of the protection of marriage on the level of legal principle. The U.S. Constitution should say that marriage is a union of a man and a woman. Period. Such a resolution would not necessarily exclude civil unions and other accommodations, but it would prevent legislatures, courts and Congress from making such ersatz unions the legal equivalents of marriage, with all the rights and privileges of marriage.
It would also undo the mischief already wrought in some states, like Massachusetts, Vermont and Connecticut, since the supremacy of federal law would make contrary state policies unconstitutional.
The moment has arrived to start protecting marriage effectively in our legal culture — not by piecemeal victories at the ballot box in Maine or the votes in the New York Senate, but at the level of constitutional principle.
Using the call for a constitutional convention to build and capitalize on that momentum — both during this congressional election year and in preparation for the next presidential election — only seems sensible.
David Yves Braun is the pen name of a government
employee who wishes to remain anonymous.