July 12, 2004,
In 1996, three fourths of the House and Senate joined President Bill Clinton in a strong bipartisan effort to defend the traditional institution of marriage, by enacting the federal Defense of Marriage Act (DOMA). That act defined, as a matter of federal law, the institution of marriage as the union of one man and one woman reflecting the views of the vast majority of Americans across the country. Today, as it debates a constitutional amendment to defend marriage, the Senate will revisit precisely the same question: Should the institution of marriage continue to be defined as the union of one man and one woman as it has been defined for thousands of years?
Since the 1996 vote, two things have changed. First, activist courts have so dramatically altered the meaning of the Constitution, that traditional marriage laws are now under serious threat of being invalidated by judicial fiat nationwide indeed, the process has already begun in numerous states across the country. Second, the broad bipartisan consensus behind marriage that was exhibited in 1996 has begun to fracture. Some who supported DOMA just a few years ago are, for partisan reasons, unwilling to defend marriage today. Although the defense of marriage should continue to be a bipartisan endeavor and kept out of the hands of activist lawyers and judges there is no question that both the legal and the political landscapes have changed dramatically in recent years.
COMMITMENT TO MARRIAGEOne thing has never changed, however: Throughout our nation's history, across diverse cultures, communities, and political affiliations, Americans of all stripes have remained committed to the traditional institution of marriage. Most Americans strongly and instinctively support the following two fundamental propositions: Every human being is worthy of respect, and the traditional institution of marriage is worthy of protection. In communities across America, adults form caring relationships of all kinds, while children are raised through the heroic efforts of parents of all kinds including single parents, foster parents, and adoptive parents. We admire, honor, and respect those relationships and those efforts.
At the same time, most Americans believe that children are best raised by their mother and father. Mankind has known no stronger human bond than that between a child and the two adults who have brought that child into the world together. For that reason, family and marriage experts have referred to the traditional institution of marriage as the "gold standard" for raising children. Social science simply confirms common sense. Social science also confirms that, when society stops privileging the traditional institution of marriage (as we have witnessed in a few European nations in recent years), the gold standard is diluted, and the ideal for raising children is threatened.
There are a number of important issues facing our nation and the raising and nurturing of our next generation is one of them. Nearly 120 years ago, in the case of Murphy v. Ramsey, the U.S. Supreme Court unanimously concluded that "no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth" than "the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony" (emphasis added). That union is "the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement." Moreover, that same Court unanimously praised efforts to shield the traditional institution of marriage from the winds of political change, by upholding a law "which endeavors to withdraw all political influence from those who are practically hostile to its attainment."
FALSE ARGUMENTSToday, however, the consensus behind marriage appears to be unraveling. Of course, those who no longer support traditional marriage laws do not say so outright. Instead, they resort to legalistic and procedural arguments for opposing a marriage amendment. They hope to confuse the issue in the minds of well-meaning Americans and to distract them from the importance of defending marriage, by unleashing a barrage of false arguments.
Why do we need a federal constitutional amendment, when we already have DOMA?
The need for a federal constitutional amendment is simple: The traditional institution of marriage is under constitutional attack. It is now a national problem that requires a national solution. Legal experts and constitutional scholars across the political spectrum recognize and predict that the only way to preserve the status quo the only way to preserve the traditional institution of marriage is a constitutional amendment.
Immediately after the U.S. Supreme Court announced its decision in Lawrence v. Texas in June 2003, legal experts and commentators predicted that, under Lawrence, courts would begin to strike down traditional marriage laws around the country.
In Lawrence, the Court explicitly and unequivocally listed "marriage" as one of the "constitutional" rights that, absent a constitutional amendment, must be granted to same-sex couples and opposite-sex couples alike. Specifically, the Court stated that "our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.... Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do" (emphasis added). The Lawrence majority thus adopted the view endorsed decades ago by one of its members Justice Ruth Bader Ginsburg. While serving as general counsel of the American Civil Liberties Union, she wrote that traditional marriage laws, such as anti-bigamy laws, are unconstitutional and must be struck down by courts.
It does not take a Supreme Court expert to understand the meaning of these words. And Supreme Court experts agree in any event. Legal scholars are a notoriously argumentative bunch. So it is particularly remarkable that the nation's most recognized constitutional experts including several liberal legal scholars, like Laurence Tribe, Cass Sunstein, Erwin Chemerinsky, and William Eskridge are in remarkable harmony on this issue. They predict that, like it or not, DOMA or other traditional marriage laws across the country will be struck down as unconstitutional by courts across the country.
Indeed, the process of invalidating and eradicating traditional marriage laws nationwide has already begun. Most notably, four justices of the Massachusetts Supreme Judicial Court invalidated that state's marriage law in its Goodridge decision issued last November, which it reaffirmed in February.
Those decisions were breathtaking, not just in their ultimate conclusion, but in their rhetoric as well. The court concluded that the "deep-seated religious, moral, and ethical convictions" that underlie traditional marriage are "no rational reason" for the institution's continued existence. It argued that traditional marriage is a "stain" on our laws that must be "eradicated." It contended that traditional marriage is "rooted in persistent prejudices" and "invidious discrimination," rather than in the best interest of children. Amazingly, it even suggested abolishing the institution of marriage outright, stating that "if the Legislature were to jettison the term 'marriage' altogether, it might well be rational and permissible." And for good measure, the court went out of its way to characterize DOMA itself as unconstitutionally discriminatory.
Without a federal constitutional amendment, activist courts, and judges will only continue striking down traditional marriage laws across the country including DOMA itself. Lawsuits challenging traditional marriage laws are now pending in courtrooms across America including four lawsuits in federal court.
In 2000, Nebraska voters ratified a state constitutional amendment protecting marriage in that state. Yet that state constitutional amendment has been challenged in federal district court as violating federal constitutional law. As Nebraska's attorney general, Jon Bruning, testified last March, the state expects the federal district judge to strike down its constitutional amendment. A federal lawsuit has also been filed in Florida to strike down DOMA as unconstitutional under Lawrence. Lawyers are similarly claiming that DOMA is unconstitutional in a pending federal bankruptcy case in Washington state. And in Utah, lawyers have filed suit arguing that traditional marriage laws, such as that state's anti-polygamy law, must be struck down under Lawrence. And that just covers lawsuits in federal court in addition, dozens of suits have been filed in state courts around the country.
A representative of the Lambda Legal organization a champion of the ongoing nationwide litigation campaign to abolish traditional marriage laws across the country recently stated: "We won't stop until we have [same-sex] marriage nationwide." This nationwide litigation campaign also enjoys the tacit, if not explicit, support of leading Democrats including Sens. John Kerry and Ted Kennedy, Rep. Jerrold Nadler, and former presidential candidates Howard Dean and Carol Moseley Braun. All of them have attacked DOMA as unconstitutional, and thus presumably want DOMA to be invalidated by the courts and without a constitutional amendment, their wishes may very well come true. The only way to stop the lawsuits, and to ensure the protection of marriage, is a constitutional amendment.
Why do we need an amendment now?
Last September, the Senate subcommittee on the Constitution, Civil Rights and Property Rights examined the threat posed to the traditional institution of marriage by the Lawrence decision.
Detractors of the hearing scoffed that the threat was a pure fabrication, motivated by partisan politics. But then, just two months later, the Massachusetts Goodridge decision, relying specifically on Lawrence, struck down that state's traditional marriage law precisely as predicted at the hearing.
Detractors then scoffed that the Goodridge decision would not stick. They argued that the state's own constitutional amendment process would be sufficient to control their courts. But then, the Massachusetts court reaffirmed its decision in February. The court even refused to bend after the Massachusetts legislature formally approved a state constitutional amendment an amendment that can only take effect, if ever, no earlier than 2006.
Detractors then scoffed that DOMA had not been challenged, so there was no reason to take constitutional action at the federal level. But then, lawyers began to challenge DOMA. Cases are now pending in federal courts in Florida and Washington. Additional challenges are, of course, inevitable.
The truth is that, for these detractors, there will never be a good time to protect the traditional institution of marriage because they don't want to protect the traditional institution of marriage. The constitutional amendment to protect marriage is not a "preemptive strike" on the Constitution, as detractors allege it's a precautionary solution. Parents take responsible precautions to protect their children. Spouses take responsible precautions to protect their marriage. Likewise, government has the responsibility to take precautions to protect the institution of marriage.
Why can't the states handle this? After all, isn't marriage traditionally a state issue?
This argument borders on the fraudulent. There is nothing that a state can do to fully protect itself against federal courts hostile to its laws except a federal constitutional amendment. Nebraska has already done everything it can, on its own, to defend marriage up to and including a state constitutional amendment. Yet its amendment has already been challenged in federal court, where it is expected to be struck down. As state and local officials across the country have repeatedly urged, when it comes to defending marriage, the real threat to states' rights is judicial activism not Congress, and certainly not the democratic process.
Moreover, the Constitution cannot be amended without the consent of three-fourths of the state legislatures. States can protect marriage against judicial activism but only if Congress provides them the opportunity to consider a federal constitutional amendment protecting marriage.
Isn't our Constitution too sacred for such a political issue as defending marriage?
No one is suggesting that the Constitution should be amended lightly. But the defense of marriage should not be ridiculed as a political issue. Nor should we disparage the most democratic process established under our Constitution by our Founding Fathers.
Our Founding Fathers specifically insisted on including an amendment process in the Constitution, because they humbly believed that no man-made document could ever be perfect. The constitutional amendment process was deliberatively considered and wisely crafted, and we have no reason to fear it.
We have amended the Constitution no fewer than 27 times most recently in 1992 to regulate Congressional pay increases. The sky will not fall if Americans exercise their democratic rights to amend it again. Surely, the protection of marriage is at least as important to our nation as the regulation of Congressional pay, the specific manner in which we coin our money, or the countless other matters that can be found in our nation's charter.
Moreover, there is a robust tradition of constitutional amendments to reverse constitutional decisions by the courts with which the American people disagree including the 11th, 14th, 16th, 19th, 24th, and 26th Amendments.
Opponents of the marriage amendment apparently have no objection to the courts amending the Constitution. Yet the power to amend the Constitution belongs to the American people, through the democratic process not the courts. The courts alter the Constitution under the guise of interpretation far more often than the people have. Because of Lawrence, it is inevitable that the Constitution will be amended on the issue of marriage the only question is how, and by whom. Legal scholars across the political spectrum agree that a constitutional amendment by the people is the only way to fully protect marriage against the courts.
Why would we ever want to write discrimination into the Constitution? Why would we ever want to roll back the Bill of Rights?
This argument is offensive, pernicious and revealing.
Marriage is not about discrimination it is about children. It is offensive to characterize the vast majorities of Americans who support traditional marriage individuals like Reverend Ray Hammond of the Bethel African Methodist Episcopal Church in Boston, Reverend Richard Richardson of the St. Paul African Methodist Episcopal Church in Boston, and Pastor Daniel de Leon, Sr., of Alianza de Ministerios Evangélicos Nacionales (AMEN) and Templo Calvario in Santa Ana, California as bigots. It is offensive to characterize the laws, precedents, and customs of all fifty states as discriminatory. And it is offensive to slander the 85 senators who voted for DOMA as hateful.
Moreover, it is precisely because some activists believe that traditional marriage is about discrimination, and not about children, that they believe that all traditional marriage laws are unconstitutional and therefore must be abolished by the courts. These activists leave the American people with no middle ground. They accuse others of writing discrimination into the Constitution yet they are the ones writing the American people out of our constitutional democracy.
Just last week, representatives of Sens. John Kerry and John Edwards said that the marriage amendment would "roll back rights." If you believe that traditional marriage is only about discrimination and about violating the rights of adults as Sens. Kerry and Edwards apparently believe then you have no choice but to oppose all traditional marriage laws. Any other position is incoherent at best and deceptive at worst.
MARRIAGE PROTECTIONSo the issue has been joined precisely as it was in 1996. Despite typical Washington Beltway tricks to overcomplicate and confuse matters, the question remains a simple one: Should marriage, defined as the union of one man and one woman, be protected against judicial activism and the will of legal and political elites? If you believe that the answer is yes as vast majorities of Americans do then you have no legal option but to support a federal constitutional amendment protecting marriage.
The American people believe that every human being deserves respect, and the traditional institution of marriage deserves protection. As members of Congress continue to debate this issue, we should also remember what else the American people deserve: honesty.
The Honorable John Cornyn is a United States. senator from Texas and chairman of the Senate Judiciary subcommittee on the Constitution, Civil Rights and Property Rights. He is a former state-supreme-court justice and state attorney general. Since September 2003, he has chaired three hearings to examine the legal threat to the traditional institution of marriage.