More On President Bush's Proposed Same-Sex Marriage Amendment:
Part Two of a Series on Wise and Unwise Constitutional Amendments

By VIKRAM AMAR AND ALAN BROWNSTEIN

Friday, Feb. 18, 2005

In our last column, we discussed why we believe there should be a strong presumption against current proposals to amend the federal Constitution to ban same-sex marriage.

There, we argued that a federal amendment ordinarily should not be used to entrench resolution of a question just at the time most Americans are beginning to seriously engage the question - at a time when many people's views are in flux. And we argued that the debate about same-sex marriage involves just such a beginning of a long-term political discussion that should not be disrupted and curtailed by a constitutional amendment.

Today, in Part Two of this two-part series, we explain why the most common assertions that have been advanced in support of amending the Constitution are not compelling enough to overcome this presumption.

The Completely Unpersuasive Legal Case for the Need for a Constitutional Amendment

Some proponents argue that a federal constitutional amendment banning same sex marriage is necessary to head off an imminent Supreme Court decision that, they predict, will require states to recognize same-sex marriage as a matter of federal constitutional law.

Such a ruling is inevitable, they say, due to the logic of Lawrence v. Texas - where the Court invalidated Texas' criminal ban on same-sex sodomy. Thus, they assert, a constitutional ban is really an attempt to promote political resolution of this issue, and avoid having a complex, value-based issue decided by judicial fiat.

Further, they suggest, since the inevitable Supreme Court opinion recognizing same-sex marriage would itself prompt an amendment at that time, it is better to adopt the amendment now, so that the Court's stature is not diminished by a rapid rebuke by the people of its decision.

Of course, if one takes this argument at face value, then the proposed amendment's language should be narrowly limited, to say something like: "Nothing in this Constitution should be understood to require a state to recognize as a marriage any relationship other than one between a man and a woman."

Any proposed amendment that reaches beyond this kind of wording simply cannot be justified by the goal of avoiding a federal judicial mandate on this question. Yet many supporters of a constitutional amendment have offered much broader language in their proposals.

In any event, we believe that an argument in favor of an amendment premised on the expectation that the Supreme Court is about to protect same-sex marriage in the name of the federal Constitution anytime soon is wrong-headed.

The Court remains moderate, if not conservative - and new Bush appointees, if there are any, are likely to keep it that way. We find it more than ironic that while liberal groups ponder the non-trivial possibility that the right to have an abortion will be overruled in the next few years, thoughtful conservatives have somehow convinced themselves that the Supreme Court is on the verge of legalizing same-sex marriage in the near future. It just ain't so. Certainly, the Court has done nothing in the last decade to suggest that it is ready to undertake such a radical adventure and move out far in front of the American polity and culture on the gay marriage issue.

It is true that Lawrence could be seen as a necessary precondition for such a decision - just as Griswold v. Connecticut, which implicitly protected non-procreational sexual activity, could be seen as a necessary precondition for Lawrence itself.

But there was a 38 year interval between Lawrence and Griswold, not to mention the Court's decision upholding anti-sodomy statutes in Bowers v. Hardwick in the interim period. Surely, this history demonstrates that the ultimate constitutional consequences of doctrinal foundations are seldom inevitable and rarely imminent.

Even if the Court someday does issue a decision protecting same-sex marriage, it might not do so for several decades. Indeed, a decision rejecting constitutional challenges to restrictions on same-sex marriage may well precede any future recognition of this equality right.

Overreading the Activist Inclinations of the Supreme Court, Particularly Those of Justices Kennedy and O'Connor

To argue otherwise is, to our way of thinking, to misread Lawrence and the current Court's jurisprudence, of which it is a part, in critical ways.

Importantly, the Lawrence decision did not really involve the Court breaking new cultural and political ground. Criminal sodomy laws were seldom enforced, increasingly rejected by state courts and legislatures, and substantially out of sync with the country's views about sexuality and fairness.

Recent election results regarding same-sex marriage paint a very different picture. If opposition to same-sex marriage is sufficiently strong that getting two-thirds of Congress and three-quarters of the states to support a constitutional amendment banning it is even a possibility, then this Court is not going to barge forward and challenge that orthodoxy.

This is not a Court that rocks the boat on fundamental rights. Mandating same-sex marriage in the near future would involve deliberately sailing into an iceberg.

A key problem with predicting a pro-same-sex-marriage Supreme Court ruling in the near term is that such a ruling would have to command the support of both Justice Kennedy and Justice O'Connor. Yet there are strong reasons to doubt that either of these two Justices would support such a ruling.

Justice Kennedy reserves his passion and constitutional condemnations for what he sees as truly egregious governmental conduct. He will righteously protect religious liberty against a naked attempt to suppress a minority faith, as he did in Church of Lukumi Babalu Aye. He will challenge a state constitutional amendment that exposes homosexuals as a named class to limitless civil disabilities, as he did in Romer v. Evans. And he will prohibit the state from sending adults to jail for engaging in consensual sexual acts in their bedrooms when that result seems dramatically inconsistent with conventional norms of fairness and tolerance, as he did in Lawrence itself.

But Kennedy goes with the cultural flow when decisions have any plausible, non-invidious justifications that comport with a broadly majoritarian, national consensus. Thus, he voted to uphold the ban on partial-birth abortion in Stenberg v. Carhart, and comfortably accepted the government's burdening of the free exercise rights of Native Americans to use peyote in Employment Division v. Smith.

As for Justice O'Connor, she often supports abstract standards of review that would seem to commit the Court to reach liberal results. Thus, for example, she insists that rigorous review is appropriate when laws substantially burden religious practice, that government should not be able to endorse religion, and that the right to have an abortion should not be unduly burdened. But her applications of those standards are routinely conventional and conservative.

In Planned Parenthood v. Casey, for example, Justice O'Connor concluded that 24-hour waiting periods and informed consent requirements do not unduly burden abortion rights. And in Smith and Lyng v. Northwest Indian Cemetery Protective Assn, she upheld the government's significant burdening of religion. Similarly, Justice O'Connor votes to uphold most government actions that subsidize religious institutions or express religious messages.

In sum, nothing in the jurisprudence of these two Justices suggests that they are going to dramatically interfere with the ability of states to determine the parameters of marriage.

Arguably, Romer and Lawrence Suggest a Political, Not a Supreme Court, Resolution of This Issue

Finally, yet another problem with predicting a pro-same-sex marriage opinion from the Court is that, in a very real sense, the decisions in Romer and Lawrence may actually argue in favor of reserving questions about same-sex marriage for ordinary political deliberation.

Laws imposing civil disabilities on persons with homosexual orientations, as the state constitutional provision in Romer did, or criminalizing homosexual conduct, as the statute in Lawrence did, constitute significant impediments to gay people engaging in the political process. Effective political activity requires the ability of actors to identify themselves as members of the class whose interests they are promoting. With laws such as these, where public acknowledgment of one's status as a gay person could subject one to civil or criminal sanction, political conduct is necessarily chilled.

(Think about religion as an illustration of this point. If it is against the criminal law to practice Judaism, and even non-practicing Jews are subject to civil sanctions, then membership in the American Jewish Congress and similar groups is going to decline precipitously.)

Viewed this way, these cases may not set the stage for a pro-same-sex-marriage Supreme Court ruling at all. By protecting gay people from persecution and prosecution, Romer and Lawrence open and level the political playing field. They make possible the kind of free and frank dialogue that civil disabilities and sodomy laws chilled and distorted. Given these holdings, one might argue, there is no reason for the Court to precipitously cut off the very discussions its decisions have made possible.

For all these reasons, we find the argument that an anti-same-sex marriage amendment is necessary to preempt a pro-same-sex-marriage U.S. Supreme Court decision entirely unpersuasive. Let us go on, then, to examine the proposed amendment on its merits.

The Weak Policy Case against Gay Marriage: Some Preliminary Thoughts

Constitutional amendments involve a mix of law and policy. We have argued, in our prior column and the first part of this one, why, as a matter of constitutional law, a federal amendment banning same-sex marriage is simply not proper or necessary.

Although we have no claim to special expertise when it comes to social policy, we believe that the character of the institution of marriage, as it has been understood by courts and modern commentators, also militates against enshrining into our supreme law a ban on same-sex marital unions.

Indeed, turning to the substance of the controversy, we think the conflict over same-sex marriage has distorted discussion about the institution of marriage in extraordinary ways. Whether or not there are any plausible reasons for reserving the label of marriage for heterosexual couples only, we feel that proponents of amending the Constitution often rely on specious arguments. Longstanding and widely-accepted propositions about the nature of marriage - relating to the individual and social benefits of monogamy, personal responsibility, and commitment -- seem to have been summarily cast aside for no other reason than that they are incidentally or directly inconsistent with arguments opposing same-sex unions.

Important and complex social institutions such as marriage serve multiple functions. Clearly, one of those is functions is to provide a stable foundation for the raising of children. It does no disservice to this goal, however, to recognize that marriage serves other independently valuable purposes as well. This is just common sense. Freedom of speech is no less intrinsic to the operation of democratic self-government if we also recognize that this right also serves other purposes, such as the affirmation of personal autonomy.

But many opponents of same-sex marriage insist marriage is primarily about only one objective - procreation and the preservation of the species. Indeed, it is on this issue that debate about same-sex marriage simply falls apart - with proponents of such marriages shaking their heads in disbelief, and trying to find some tactful way to say that the arguments of opponents seem unintelligible.

To put it simply, in our view, marriage is about children, commitment and responsibility, and love and sex. Let's take the bull by the horns and talk about the last factor first.

Sex is a powerful force in most people's lives. Entirely unconstrained, it can be disruptive, abusive, and even dangerous. Both the individuals involved and society benefit when sexual activities occur in loving, long-term, monogamous relationships.

This is true whether or not a couple has children. It is true for gays and lesbians as well as heterosexuals. Relationships of this kind further personal and public health goals, social stability, psychological well-being, and for most people, personal happiness.

The institution of marriage promotes loving, long-term, monogamous relationships which in turn further the aforementioned, valuable social and personal purposes. Prior to the debate about same-sex marriage, we thought the above contention was a fundamental axiom of conservative thought. Today, however, this basic understanding seems to have been forgotten by conservatives. Liberals who are traditionalists about marriage, like us, simply cannot understand this change in attitude.

Recognizing the role that marriage plays in providing a constrained and positive framework for the expression of sexual feelings is intrinsic to our understanding of the meaning and scope of this institution. That is why arguments by opponents of same-sex marriage about extending marriage to two brothers or a mother and daughter living together are irrelevant. Those relationships aren't sexual in nature. Providing a framework for sexual intimacy to take place is one of the unique virtues of marriage as a formal institution.

This understanding of marriage has important ramifications for the same-sex marriage debate. Restricting marriage to heterosexual couples deprives gay couples and society of the value of this formalized sexual constraint. Assuming that most gays and lesbians will neither be transformed into heterosexuals or disappear, the alternatives to long term, loving, monogamous relationships between gay people are celibacy and promiscuity. The former is absurdly unrealistic, and the latter is far less beneficial and much more problematic - again, both for the individuals involved and society. It is difficult to understand why conservatives, in particular, seem entirely unconcerned about the societal consequences of their position.

The second-to-last factor is commitment and responsibility. Again, we are bewildered. When did this become an unimportant aspect of marriage - its importance limited to the extent that it helps to maintain a stable environment for the raising of children?

In a society committed to rampant individualism and materialism, one individual's respect for and caring for another for the long term, putting his or her own interests aside to help his or her partner, is of great value - both for the individuals whose lives are made more secure, and for society, which benefits both from this example of personal responsibility and the tangible care that marital partners provide to each other.

These virtues are never doubted when infertile and/or elderly heterosexuals get married. These marriages show, of course, that procreation is not the exclusive purpose of marriage. But on a deeper level, they also show that the other things that marriage accomplishes are profoundly valuable and deserving of promotion.

These marriages are not simply tolerated. They are celebrated with enthusiasm as wonderful events in the lives of the individuals involved. Marriage for these people is a positive good, not something the state grudgingly allows.

Moreover, non procreative marriages are not some rare and aberrant occurrence. The population for whom non-procreative marriage is at least a possibility is extraordinarily large. For most people, child bearing does not occur after the age of 45. Let's add ten years to that. Marriages between people who are over 55 do not serve procreative functions. That's a class of over 60 million people, over a fifth of the population of the United States. Over 23 million people in that class are not married. Are all weddings within that class purposeless?

But that's not all. Over 2 million married couples under the age of 45 are infertile. That's about 7% of the married couples in the country.

Then there are couples who are capable of having children but who are deliberately childless. Statistics are less clear here, but we are probably talking about at least 6% of the married couples in the United States.

Viewed from another perspective, 18% of women between the age of 40 and 44 -- that is, women who are very near the end of their childbearing years -- have never had a child.

Is marriage meaningless for all the individuals in these overlapping cohorts? Unless we are prepared to demean the marital relationships of millions of our friends, neighbors and colleagues as purposeless and valueless rituals, descriptively as well as normatively, marriage cannot be limited to procreation.

Let us be clear here. We know that many opponents of same-sex marriage argue that such unions undermine the utility of marriage as the primary institution for the raising of children. That harm, some say, offsets any benefits extending marriage to same-sex couples provides. We leave that discussion for another time. But at least that argument recognizes the other purposes and value of marriage, even though it suggests that they are in tension with the institution's procreative function.

When opponents of same sex marriage deny or trivialize the other purposes of marriage we have described, we are left speechless. That is the argument we simply do not understand, and which, in our view, cannot possibly justify an amendment to the Constitution.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author of the Cohen and Varat constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher. Alan Brownstein is a Professor of Law at UC-Davis School of Law.

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