Social Studies May 2006

Gay Marriage Amendment: Case Closed

What many proponents of the Marriage Protection Amendment want to forestall is not judicially enacted gay marriage; it is gay marriage, period.

All right, so the Republicans have had better years. But don't forget their secret weapon. Not an ABM, MIRV, or MX. An MPA: the Marriage Protection Amendment, precision-targeted on same-sex marriage and, through it, the Republican base.

The MPA would amend the U.S. Constitution to forbid gay couples to marry. Senate Majority Leader Bill Frist, R-Tenn., says he will bring the amendment up during the week of June 5. It has zero chance of passing by the required 67-vote majority, as Frist knows. In 2004, the amendment garnered only 48 Senate votes, and the Human Rights Campaign, a gay-rights group, figures it will get only about 52 votes this year.

So why bother? Consider Virginia, where in 2004 the Republican-controlled Legislature hit on the promising formula of passing both a whopping tax increase and a gratuitously vindictive anti-gay-marriage law. (The so-called Marriage Affirmation Act outlawed not only gay marriage and civil unions, but also private contracts between same-sex individuals seeking to replicate marital arrangements.) Lyndon Johnson once said, "Hell, give [a man] somebody to look down on, and he'll empty his pockets for you." The Virginia formula was in that vein: Knock the gays hard enough, and maybe conservatives wouldn't notice the tax hike.

In Virginia, the moral-values credit card seemed to have maxed out in 2005; Democrats held the governorship. Nationally, many conservative voters seem to have noticed that the same Republican politicians who are trotting out the marriage amendment have also spent up a storm, created the biggest new entitlement program since LBJ's Great Society, riddled the budget with earmarks, and approved unprecedented restraints on political activity.

Whatever its political merits, the MPA remains as unwise substantively as when it first came up in 2004. Since then, moreover, the case for its necessity has disintegrated.

The question posed by the marriage amendment is not just whether gay marriage is a good idea, but who should decide—the states or the federal government? From its debut in 2001, the marriage amendment was misleadingly advertised as a restriction on activist courts. In truth, the amendment would strip the power to adopt same-sex marriage not only from judges but from all 50 states' legislators, governors, and electorates.

Defining and regulating marriage has been within states' purview since colonial times. (Utah was required to ban polygamy while it was still a federal territory. On the few occasions when the U.S. Supreme Court has intervened, it has curtailed states' powers to restrict marriage rights, not imposed a definition.)

Why should the federal government usurp the states' authority over marriage? Amendment supporters have insisted that gay marriage anywhere would soon spread everywhere. How, they demanded, could one state have a separate definition of marriage without creating chaos? Unless the federal government stepped in, they said, one or two states would impose same-sex marriage on all the rest.

Actually, states have defined marriage differently for most of the country's history. Until the 1960s, mixed-race marriages were recognized in some states but not others. That each state is entitled to regulate marriage in accord with its public policy views is established legal precedent; otherwise Maryland, say, could start marrying 10-year-olds and every other state would be obliged to go along—an absurdity. Moreover, in 1996 Congress passed the Defense of Marriage Act, which explicitly relieved the states of any obligation to recognize other states' same-sex marriages.

Federal-amendment proponents have claimed that the Supreme Court might strike down DOMA. That argument, already weak on the law (DOMA is almost certainly constitutional), is even weaker now that President Bush's two Supreme Court appointments, Chief Justice John Roberts and Associate Justice Samuel Alito, have solidified the Court's conservative majority. Would-be amenders are now reduced to claiming that the Constitution should be revised to pre-empt a hypothetical ruling by a future Supreme Court. On this prophylactic theory of constitutional jurisprudence, it is hard to imagine what amendment might not be in order.

So far, DOMA has stood up. The country's most liberal federal appeals court, the California-based 9th Circuit, saw off a challenge to DOMA just this month. Meanwhile, for more than two years Massachusetts has been marrying same-sex couples, including couples who travel and move outside the state. Spot the chaos? The wholesale legal confusion?

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Jonathan Rauch is a contributing editor of The Atlantic and National Journal and a senior fellow at the Brookings Institution.

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