Marriage, the Courts, and the Amendment

Published August 16, 2006

Ironically, I got into my first protracted discussion about the Federal Marriage Amendment [FMA] at a wedding reception, a few years back. My interlocutors were two prominent political philosophers of a generally conservative (or, if the term hasn’t become unfit for family newspapers, neoconservative) temperament. Both were against amending the Constitution to define “marriage”as the union of a man and a woman, and their arguments were, in some sense, aesthetic: the Constitution is a beautiful text; amending it should only be done under the gravest circumstances; one shouldn’t amend the Constitution to resolve a policy issue that should be settled legislatively. To do so was to mar the text, like defacing a painting or taking a hammer to a sculpture.

The notion that we were governed by the text of the Constitution was a pious memory, I replied; we hadn’t been governed that way for decades. Yes, it was a shame that the Framers’ beautifully balanced text had to be subjected to amendments in order to resolve issues so obviously within the purview of the people and their duly-elected representatives. But, I argued, if the Constitution weren’t amended to defend the institution of marriage (in which both of my friends were, and are, devout believers) the federal courts were going to “amend” the Constitution for us by finding a right to “gay marriage” in the same way they had found a “right to abortion” — by inventing it, in an exercise in tortured jurisprudential logic.

While I haven’t talked to my friends since the FMA failed to get a simple majority in the Senate in June, my hunch is that they’ve both had second thoughts about the necessity of a federal constitutional amendment on marriage.

Why? Because they’ll likely have had a chance to think through the implications of the Supreme Court’s decision — and Justice Anthony Kennedy’s decisive opinion — in Lawrence v. Texas, the 2003 decision that struck down a Texas statute criminalizing sodomy. The Supreme Judicial Court of Massachusetts explicitly cited Lawrence in the Goodridge decision, by which the Massachusetts Supremes rejected that state’s practice of  issuing marriage licenses to Adam and Eve, but not to Adam and Steve or to Eve and Bertha.

The way in which Justice Kennedy settled Lawrence is a wedge that threatens to open up a chamber of judicial horrors. Kennedy argued that the distinction between heterosexual and homosexual relationships did not meet the Court’s “rational basis” standard for judging what constitutes a discriminatory statute. But if that is true — as the Massachusetts Supremes understood — then there is no constitutionally serious basis for denying Adam the right to “marry” Steve, or Eve to “marry” Bertha. Justice Kennedy’s subsequent claim that his Lawrence decision didn’t have clear implications for the same-sex “marriage” debate won’t wash.

As for the chamber of horrors: if the standard that Justice Kennedy applied in Lawrence must, as a matter of logic, open the door to same-sex “marriage,” then what is to prevent its being used to create a “right” to polygamy? Or a “right” to a marital threesome? Or foursome? Or whatever? Critics of the FMA claim that raising such alarms is a matter of scare tactics. In fact, though, you can find arguments in favor of legalized polygamy, polyandry, polyamory, and all the rest in the leading law reviews of the country.

And what would be the result of a constitutional “development” in this direction? In a striking article in the June 5 issue of the Weekly Standard, Stanley Kurtz argues that it might well lead to the end of democracy. For the social mores attendant upon polygamy, polyandry, and the polymorphous perversity of polyamory are incompatible with the social mores necessary for a self-governing democracy. I won’t attempt to summarize Dr. Kurtz’s brilliant essay; suffice it to say that you should read it (, and then give it to every senator who says that the Federal Marriage Amendment is unnecessary.

Marriage, Kurtz writes, is about “sustaining the conditions in which freedom can thrive.” That’s what’s at stake in the FMA, and our representatives in the House and Senate must be made to know it.

George Weigel is Distinguished Senior Fellow of Washington’s Ethics and Public Policy Center, where he holds the William E. Simon Chair in Catholic Studies.

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