March 04, 2004, 8:30 a.m.
A Battle, Joined
Marriage and the constitution.

By NR Editors

EDITOR'S NOTE: This article appears in the March 22, 2004, issue of National Review.

President Bush neatly summarized the case for a constitutional amendment regarding marriage. Congress and 38 states have in recent years passed legislation reaffirming that marriage is the union of a man and a woman, showing this definition to be "an overwhelming consensus in our country." But "some activist judges and local officials" — acting in a spirit of lawlessness — "have made an aggressive attempt to redefine marriage." He continued, "On a matter of such importance, the voice of the people must be heard." The federal Defense of Marriage Act was an attempt to ensure that their voice would be heard. But activist courts could strike it down; and federal and state courts could impose same-sex marriage on any state, or all states, even if that law stayed on the books. Thus, concluded the president, an amendment to the Constitution is necessary.

With near uniformity, the media portrayed the president as a cynical exploiter of "wedge issues." The phrase "wedge issues" deserves its own long entry in the encyclopedia of liberalism; its meaning appears to be that there is something untoward, disgraceful even, when a Republican politician has the temerity to point out that the Democrats' position is out of step with public opinion. In any case, the notion that the president woke up one day, saw that his poll numbers had slid, and decided to whip up popular hostility to homosexuals as a political ploy is ludicrous on its face. It was not opponents of same-sex marriage who put the issue on the national agenda. It was liberal judges, lately aided by liberal mayors. Moreover, the president has on several occasions stressed the importance of conducting "this difficult debate in a manner worthy of our country, without bitterness or anger" toward homosexuals or others. As for those Democrats who are saying that Bush wants to "write discrimination into the Constitution," they should re-examine their position. If the amendment is "discrimination," then all opposition to same-sex marriage is discrimination, too. Yet almost all of these Democrats, such as John Kerry, profess to be opposed to same-sex marriage themselves. The president cannot be blamed for driving a wedge between the Democrats and their own convictions.

We are sure that the president, like most people, does not wish to dwell on the subject of same-sex marriage. Yet he will have to talk about it more. If he does not, the press and the Democrats will be able to tell their side of the story — Bush as panderer to bigots — unrebutted. Other Republicans will also have to learn to discuss the issue with at least the same amount of knowledge, confidence, and ease that they bring to medical malpractice reform. Reporters flummoxed Scott McClellan, Bush's press secretary, by asking whether the president considered gay couples a bigger threat to marriage than no-fault divorce. It should not have been a tough question. The answer he should have given? "The president believes that the divorce rate is too high. But we have the divorce laws we have because of a democratic process. This situation is different: We have the courts imposing a radical change that the public opposes. It is that difference that justifies an amendment."

It would also be wise for the president to prevail upon legislators to change the wording of the proposed marriage amendment. Its second sentence declares, "Neither this Constitution or 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." The reference to "legal incidents" has confused many observers and led to disagreement about the amendment's impact on civil unions. The opponents of the amendment have made good use of this ambiguity.

But even if the president says the right things, gets his aides to do the same, and tinkers with the wording of the amendment, it may not be enough. Passing an amendment requires a two-thirds vote of Congress, followed by ratification by three-fourths of the states. The early statements of senators do not appear to presage passage. Supporters of the amendment claim that if Congress balks, they will be able to elect new congressmen to pass it. But this strategy, even assuming that it proved successful, would take time. During that time, we can expect the courts to keep changing the marriage laws. Massachusetts was the start. Indiana could well be next.

We are therefore pleased to learn that Sen. Orrin Hatch is introducing his own constitutional amendment. His version reads as follows: "Civil marriage shall be defined in each state by the legislature or the citizens thereof. Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman." This amendment would not only clearly allow civil unions to be enacted by legislatures; it would even allow legislatures to enact full-fledged same-sex marriage. But it would bar federal or state courts from imposing either.

Some conservatives will object that this amendment does not go far enough. But what it does is meet the challenge that actually inspired an amendment in the first place: the threat that judges will impose same-sex marriage or its equivalent in disregard of the public will. Hatch's language has the additional advantage of being clear and understandable to the layman. For most people, the notion that legislators should be making these decisions will seem like simple common sense.

We would be delighted if the marriage amendment, as currently proposed, were to pass. If it cannot pass, however, we hope conservatives will have the wisdom and maturity to change course — and take a look at Senator Hatch's proposal.

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