Marriage in the Balance: Is a Constitutional Amendment the Way to Go?

WASHINGTON — The decision last month by the Massachusetts Supreme Judicial Court to approve homosexual marriage has spurred rapid Senate action to introduce a constitutional amendment.

It also brought forth many opinions, some of them conflicting, on how best to protect the traditional makeup of marriage.

A week after the Massachusetts court ruled Nov. 18 in Goodridge vs. Dept. of Health that barring same-sex couples from marrying violates the state's constitution, five U.S. senators introduced a bill to amend the federal Constitution to define marriage as between one man and one woman.

A similar bill in the House of Representatives, introduced last May, has more than 100 supporters. The fate of both bills will not be determined until Congress reconvenes in the new year.

After the court's decision, which gave Massachusetts lawmakers 180 days to respond, President Bush vowed to “do what is legally necessary to defend the sanctity of marriage,” though he did not specify what steps he would take.

Many advocates of the traditional definition of marriage agree the federal Defense of Marriage Act, passed in 1996, and the marriage-protection bills enacted so far in 37 states are not adequate protections against activist courts that could rule them unconstitutional.

“We need a federal marriage amendment,” said Robert George, a Princeton University professor who serves on President Bush's bioethics board. “Otherwise state and federal courts will likely cooperate to impose same-sex ‘marriage’ on the nation by fiat.”

The definition of marriage could become the hot political issue of the year in local, state and national races. Yet there is some disagreement among conservative opinion-makers as to how the issue should be addressed.

A host of conservative groups and religious leaders, including a committee of the U.S. Conference of Catholic Bishops, have voiced support for a constitutional amendment.

Yet other conservative thinkers, notably syndicated columnist and television commentator George Will, oppose an amendment, stating that the definition and regulation of marriage should be left to the states. For this, Will has drawn the censure of conservatives who are usually on his side.

“This time we disagree,” Princeton's George said. “In my view, a federal constitutional amendment is critically necessary to protect marriage.”

Alliance Building

Other conservatives, such as syndicated columnist Maggie Gallagher, who runs a Web site on marriage, think a constitutional amendment defending marriage is so vital that they are building alliances on the issue with liberals who seek approval for same-sex unions that confer the benefits of marriage.

“I cannot back a coalition threatening to hold politicians hostage unless they support a constitutional amendment that would permanently ban [homosexual] civil unions,” Gallagher wrote in The Weekly Standard. “To win any constitutional amendment at all will require far more than mobilizing the conservative base.”

To become part of the Constitution, a proposed amendment must gain a two-thirds majority in Congress and then be approved by three-quarters of the states.

Groups such as the Family Research Council, a nationwide conservative group based in Washington, D.C., and the U.S. Conference of Catholic Bishops state that marriage in its entirety, not just in name, must be defended from homosexual encroachments.

“The legal recognition of marriage, including the benefits associated with it, is not only about personal commitment but also about the social commitment that husband and wife make to the well-being of society,” the bishops wrote in the Nov. 12 document “Between Man and Woman: Questions and Answers About Marriage and Same-Sex Unions.”

“It would be wrong to redefine marriage for the sake of providing benefits to those who cannot rightfully enter into marriage,” the bishops stated.

The bishops have taken a strong stand throughout, backed by the Vatican's Congregation for the Doctrine of the Faith, which recently explained the Church's stand against homosexual unions from a biblical and natural-law perspective.

At a September meeting in Washington, the U.S. bishops’ administrative committee offered “general support for a federal marriage amendment… as we continue to work to protect marriage in state legislatures, the courts, the Congress and other appropriate forums.”

The Massachusetts bishops, in a statement they ordered to be read at Masses on the last weekend in November, called the Goodridge decision “a national tragedy” and endorsed a federal amendment to protect marriage.

“Marriage is a gift of God which in the natural order allows for the growth of the human family and society,” they added. “It is not just one lifestyle choice among others.”

No Compromise

The Family Research Council argues that granting same-sex unions should not be used as a compromise to gain liberal support.

“The legal and financial benefits of marriage are not an entitlement to be distributed equally to all,” the group states on its Web site. “Society grants benefits to marriage because marriage has benefits for society — including, but not limited to, the reproduction of the species in households with the optimal household structure (i.e., the presence of both a mother and a father).”

Winnie Stachelberg, political director of the Human Rights Campaign, which pushes for homosexual marriage nationwide, condemned the move for a constitutional amendment, stating, “Congress should be looking at problems facing our nation, but loving and committed couples who want to marry and raise a family together are not one of them.”

The congressional bills for a constitutional amendment are based on language drafted by the Washington-based Alliance for Marriage, headed by attorney Matt Daniels. Alliance for Marriage is a diverse group that includes the Rev. Walter Fauntroy, a civil-rights leader who organized Martin Luther King Jr.'s March on Washington.

The Alliance for Marriage model is simply worded: “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, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”

Rep. Marilyn Musgrave, R-Colo., who introduced the bill in the House, said, “Instead of turning to the legislatures, gay activists are turning to the courts to create new law. My bill will keep unelected judges in check and prevent them from redefining marriage.”

The Senate bill was introduced Nov. 25 by Republican Sen. Wayne Allard, also of Colorado, with Kansas Sen. Sam Brownback, a Catholic, among the four co-sponsors.

“This union is sacred,” Allard said, “and must remain so.”

Stephen Vincent is based in Wallingford, Connecticut.