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The Marriage Amendment

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A marriage amendment may be the only way that "We The People" are heard.

Marriage in the United States shall consist only of the union of a man and a woman. 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 on unmarried couples or groups.

That is the proposed amendment to the Constitution that is now gathering powerful support in the Congress and in several states. Prudent citizens are reluctant to amend the Constitution unless persuaded that it is necessary. What would become the twenty-eighth amendment is necessary because the courts are moving toward a de facto amendment of the Constitution that mandates the radical redefinition of marriage and family. The question before us is how the Constitution will be amended: by judicial fiat or by "We the People of the United States" employing the means established by the Constitution. Entailed in that question is whether change will serve to advance a social revolution unsought and unwanted by the American people or will serve to secure an institution essential to the well-being of our society. The Constitution will be amended, either by constitutional means or by activist judges practicing what is aptly described as the judicial usurpation of politics.

The proposed marriage amendment has been carefully crafted by leading constitutional scholars. The first sentence means that no legislature or court may confer the name of marriage on same-sex unions or recognize a same-sex marriage contracted in another country, such as Canada or the Netherlands. The second sentence is aimed more specifically at activist courts, both state and federal, preventing them from imposing same-sex marriage or its equivalent. The question of adopting arrangements other than marriage, such as civil unions, is left to the determination of the people through the democratic process in the several states. Where the people have had the opportunity to decide the question of same-sex marriage--in Hawaii and Alaska, for instance--they have decided against it, and have done so decisively.

A proper devotion to the principles of federalism has led some to question the amendment because, they say, it would "nationalize" marriage law. The nationalizing of marriage law, however, is precisely what the activists pressing for same-sex unions are on the edge of achieving. They hope that in the next few years same-sex marriage will be decreed by the Supreme Court. In addition, same-sex couples will travel to any state that allows them to marry or enter civil unions, and will then demand that their home states give "full faith and credit" to the judgment that recognizes their status. The great majority of same-sex couples contracting civil unions in Vermont, for instance, do not live in Vermont. They will be suing for recognition of their status in the courts of their home states. An additional and declared strategy is to attack the constitutionality of the Federal Defense of Marriage Act, overwhelmingly adopted by Congress in 1996. One way or another, federalism is compromised. The marriage amendment will establish a general rule against same-sex marriage while leaving the matter of contractual unions and other nonmarital arrangements to the states.

We have been brought to the present circumstance by the astonishing success of the homosexual movement over the past three decades. Traditionally, sodomy was viewed as an act, and was condemned as unnatural and deviant. A hundred years ago, homosexuality was viewed as a condition afflicting people who are prone to engaging in such unnatural and deviant acts. Today "gay" signifies not so much an act or condition as the identity of people who say that they most essentially are what they do and want to do sexually. The rhetorical and conceptual movement has been from act to condition to identity, bringing us to the demand for same-sex marriage. About two percent of the combined teenage and adult male population, and considerably less of the female, are said to be a minority deprived of their rights. In particular, they claim to be discriminated against in that they are "excluded" from the institution of marriage. They are not asking for tolerance of their private sexual practices and of the gay subculture constituted by such practices. They are demanding, rather, public acceptance and approval. That is the whole point of focusing on the status of marriage, which is a quintessentially public institution.

It is by no means evident that most, or even many, gays are interested in entering into a legally recognized union. Until recently, more radical activists and proponents of "queer theory" vigorously opposed the movement for same-sex unions, arguing that gays should not surrender their erotic freedom to the constraints associated with the "bourgeois" institution of marriage. More recently, the radicals have lined up in support of same-sex marriage, joining the proponents of polygamy and "polyamory" who are now so influential, if not dominant, in the academic field of marriage and family law. We do not have to speculate about their aims. They have by now produced a large literature in support of what they themselves describe as a social revolution that would replace traditional marriage and family with a wide array of "family" arrangements constructed on the basis of expressive individualism and the maximizing of erotic options. A quarter century ago, President Jimmy Carter convened the White House Conference on the Family. Under pressure from such radical ideologues, the name was changed to the White House Conference on Families, in the plural. The hour of the ideologues has now arrived, and they have rallied to the battle for same-sex marriage.

There are a few gays who express admiration for traditional marriage and say they simply want to be included in its benefits. They claim they are now excluded. And they are right. They are not excluded by others; they are excluded by their identity as gays. To be homosexual is a condition; to be gay is a decision. Some say no other decision is available to them, but that is not true. Sexual temptations, like other temptations, can be resisted. In many cases, sexual orientation can be changed. Human frailties notwithstanding, chastity is a possibility for all. Yet we are faced with a not-insignificant number of people who say that gay is who they are, whether by choice or by fate, and that they are unfairly excluded from the companionship, stability, and other goods of marriage. Were the Supreme Court to do their bidding tomorrow, however, they would still be excluded from marriage. Throughout history and in all major cultures, marriage is a union between a man and a woman. That is what marriage is. A man and a man or a woman and a woman may have an intense but chaste friendship, including shared living arrangements. It is not the business of the state to certify or regulate friendships. As for those who choose a sexual relationship, we may well understand their yearning for public approval of their choice. But same-sex marriage is not marriage. It is at most a simulacrum of marriage, a poignant attempt to create a semblance of some features of marriage, a pretending to be something like the relationship between husband and wife that is marriage. The reality is not changed if the state collaborates in the pretense and calls it marriage.

To which some respond that it is a harmless pretense. If a very small minority so desperately want to be legally designated as married, even though everybody knows that their relationship is not really a marriage, why not let them? It seems the generous thing to do. It is further argued that such state-sanctioned unions would reduce the typically wild promiscuity that is characteristic of the gay lifestyle. Nobody can know whether same-sex marriage would, in fact, help domesticate the gay subculture. We do know, however, that it would radically change the customs, laws, and moral expectations embedded in millennia of human experience. Marriage and family law reflects the historically cumulative complexities of necessarily public concerns about property, inheritance, legal liability, and the legitimacy of children--the latter entailing a host of responsibilities for which parents, and especially men, can be held accountable. One of the most fundamental prerequisites of social order, it has been almost universally recognized, is the containment of the otherwise unbridled sexual activity of the human male, and marriage is--among the many other things that marriage is--the primary instrument of that necessary discipline.

Marriage and family law is, above all, about children. Same-sex couples cannot from their sexual acts procreate children. Gay activists contend that that only makes their circumstance identical with that of a marriage in which the woman is beyond the child-bearing years. But that, too, is not true. A marriage between an older man and woman does not contradict the definition of marriage as a union between a man and a woman. In addition, such a marriage aims at preventing the man from having children by other women, which is, obviously, not a consideration in same-sex relations. The activists respond that gays can adopt children, which is legal in some jurisdictions. Here again the concern for children becomes paramount. After decades of experiments with single-parent families, "open marriages," and easy divorce, the evidence is in and there is today near-unanimous agreement on what should always have been obvious: judged by every index of well-being, there is no more important factor in the lives of children than having a mother and father in the home. Lesbians and gays in same-sex unions cannot be mothers and fathers, except in the poignant simulacrum of pretended sex roles. Given the ambiguities, uncertainties, and curiosities of children in coming to understand their sexuality, the Vatican's Congregation for the Doctrine of the Faith is surely right when it says in its recent statement that denying the child the experience of having a mother and father is a cruel deprivation.

Many oppose same-sex unions and the consequent revolution in marriage and family law because they believe homosexuality is a disorder and homosexual acts are morally wrong. That is not a private prejudice. It is not, as the Supreme Court has claimed, an "irrational animus." It is a considered and very public moral judgment grounded in clear reason and historical experience, and supported by the authority of the biblical tradition. Nobody should apologize for publicly advocating a position informed by the foundational moral truths of Western Civilization. Of course, those who do so will be accused of "homophobia." Homophobia is a term of recent coinage intended to serve as a conversation stopper. Its power to intimidate is rapidly diminishing. Support for the civilizational tradition in this regard is not a phobia; it is not an irrational fear. Concern about the legal establishment and normalization of sexual deviance is fully warranted. What is called homophobia is more accurately understood as a positive judgment regarding the common good and, most particularly, the well-being of children. It should not be, but it still is, necessary to add that hatred of gays or denial of their human or civil rights is evil and must be unequivocally condemned. Moreover, it must be candidly acknowledged that gay demands and agitations today are not unrelated to patterns of sexual hedonism in the general culture.

The debate is now underway as to whether civil rights include the right of gays to have their relationships legally designated as marriage. There are many factors in the debate not addressed here. It is claimed, for instance, that a gay right to marriage is on a moral and legal continuum with extending rights to blacks and women. That convenient but simplistic comparison does not bear close examination. Discrimination against blacks and women was recognized, albeit too slowly, as contradicting the foundational values and institutions of our society. Those values were vindicated and those institutions strengthened by including people who had been unjustly excluded. The just demand of blacks and women was for full participation in the opportunities and responsibilities of the social order. The demand for gay marriage, by way of sharpest contrast, is premised upon the recognition that gays cannot participate in that order's most basic institution, and it is therefore aimed not at their inclusion but at the institution's deconstruction by redefinition. The humpty-dumpty logic is that, if you cannot do something you want to do, you redefine that something, turning it into something you can do. When such word games are translated into law, the public meaning of the something that most people can and want to do is radically changed. The public meaning of marriage and family--in law, and more gradually, in social customs and expectations--is changed for everybody. Gay activists can try but we do not think they will succeed in persuading most Americans that their marriages and families are the same thing that gays can and want to do.

One factor that has been neglected to date is that, according to the reasoning of the recent Lawrence decision of the Supreme Court, homosexuality will be viewed as a suspect category that, as in the case of race, will trigger a vast array of laws and regulations associated with the antidiscrimination regime. With respect to affirmative action, quota systems, rules about "hate speech," and much else, attitudes and actions relating to gays will be subject to, in the language of the courts, "strict scrutiny." Minimally, this will mean that homosexuality and heterosexuality, marriage and the gay semblance of marriage, will in the public schools be presented on the basis of scrupulous equality. Since almost no parents want their children to be homosexual or gay, this prospect is likely to generate powerful resistance.

Without the marriage amendment, the debate that is now underway may well be short-circuited by the courts. One way or another, the Constitution will be amended. If it is amended by the judiciary, as the Supreme Court did in its 1973 invention of an unlimited abortion license, we will almost certainly enter upon a severe intensification of what is rightfully called the culture war. Lincoln forcefully stated in his first inaugural address that the American people are not prepared to surrender their right to self-government to even the most eminent tribunal. Whether that is still true of the American people is once again being put to the test.

Just government is derived from the consent of the governed, says the Declaration of Independence. In this democracy, consent means popular deliberation, debate, and decision through the representative polity established by the Constitution. In the Lawrence decision, Justice Anthony Kennedy, writing for the majority, invoked what Justice Antonin Scalia calls the "sweet mystery of life" passage from the 1992 Casey decision that affirmed the infamous Roe ruling on abortion: "At the heart of liberty is the right to define one's own concept of meaning, of the universe, and of the mystery of human life." In that way of thinking, the dominant, if not exclusive, purpose of the Constitution in dealing with rights is to serve the autonomous self as construed by the foundationless philosophy of expressive individualism. The moral, social, political, and legal order must bend to the individual definition of truth, no matter how willful or arbitrary. In support of that logic, the Lawrence opinion cites the authority of the above-mentioned ideologues and even of like-minded jurists in the European Union.

It appears that the Supreme Court has quite forgotten the purpose and source of authority set forth by the Constitution. That purpose and source of authority is clearly stated in the Preamble: "We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

We are now engaged in a great debate about whether same-sex marriage and the criminalizing of opposition to homosexuality and the gay agenda will serve to establish justice, ensure domestic tranquility, and promote the general welfare. (Provision for the common defense is, of course, relevant to the inclusion of gays in the military, which the logic of Lawrence would make mandatory.) Of crucial importance is the securing of liberty understood as what the Founders called the "ordered liberty" of a blessing bestowed, as distinct from the unbridled license of expressive individualism and the quest for the satisfaction of insatiable desire.

The marriage amendment might finally fail, but its passage by Congress and submission to the states for ratification can ensure that "We the People" will not be excluded from the deliberation and decisions that will determine the future of marriage and family, the most necessary of institutions in the right ordering of this or any society.

Copyright (c) 2003 First Things 136 (October 2003): 26-36.

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