WHY WE NEED A MARRIAGE AMENDMENT: Robert P. George and David L. Tubbs

...In the traditional or classic understanding of American federalism--expressed in the Federalist Papers and reflected in the design of the Constitution--democratically elected state legislators represent the citizens who elect them. Those legislators enjoy wide authority to make laws relating to marriage and family life, and promoting public health, safety, and morals. Because the U.S. Constitution vests state lawmakers with such wide-ranging powers in these areas, on the classic view, courts must defer to state legislatures. Such deference is no mere courtesy or convention, but a constitutional duty. A judge may invalidate state legislation relating to marriage and family life or on public health, safety, and morals only if it conflicts with norms fairly derived from the text, logic, structure, or original understanding of the state or the federal constitution. As private citizens, judges may object to a law or policy on prudential or moral grounds, but as judges, they must distinguish the desirability--even the justice--of a policy from its constitutionality. Virtually all judges still pay at least lip service to this obligation.

Even so, state judges today ignore or circumvent it in practice with alarming frequency, so that the kind of federalism we increasingly have is not one of state legislatures but of state judiciaries. For this, the late U.S. Supreme Court justice William Brennan bears considerable blame. In an influential 1977 article in the Harvard Law Review, Brennan noted that state constitutions, like the U.S. Constitution, include provisions that convey important legal norms and principles in abstract-sounding language. Such provisions sometimes admit of multiple interpretations, especially when jurists ignore the relevant history and precedents. Brennan urged state appellate judges to interpret the state constitutional provisions expansively to secure individual rights, just as the Supreme Court had done under Chief Justice Earl Warren.

It was advice that many state-level judges proved eager to heed. In the years since Brennan wrote, state supreme courts--among them California's, Kentucky's, and Georgia's--have coined new rights or enlarged the scope of rights promulgated by the Warren and Burger Courts. Nowhere have the state courts run amok more wildly, however, than on same sex-marriage, an idea opposed by a sizable majority of Americans. In Hawaii, Alaska, Vermont, and now Massachusetts, judges have sought to redefine marriage, against the voters' will.

Can't states just deal with this judicial arrogance themselves, by flexing their federalist muscles? One prominent advocate of redefining marriage, Andrew Sullivan, says it's already happening (to his regret). He cites the following facts: 38 states have passed legislative bans on same-sex marriage; four states have already amended their constitutions to the same end (with an overwhelming 70 percent of Missouri voters endorsing a state constitutional ban this past August); and roughly a dozen states have scheduled referenda to consider similar amendments. ...

Regrettably, these state-level political efforts ultimately won't stop the march to redefine marriage. The reason: the Supreme Court is almost certain to nationalize the issue and make same-sex-marriage legal from coast to coast. ...

But one can also make a strong positive case for an amendment. After all, the idea of same-sex marriage would have seemed outlandish only a few years ago, and today only a minority, led by an elite of academics, journalists, entertainers, and, of course, state and federal judges and their clerks, gives the idea any credence. The vast majority of Americans holds as self-evident the truth that marriage between a man and a woman is a fundamental institution of a free and democratic society. And in a free and democratic society, they have the right to enshrine that truth in their constitution.

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posted by Eve at 8:54 PM VOTE

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