President Bush's Proposed Same-Sex Marriage Amendment:
Part One in a Series on Wise and Unwise Constitutional Amendments

By VIKRAM AMAR AND ALAN BROWNSTEIN

Friday, Feb. 04, 2005

Conservative and moderate Republicans (and more than a few Democrats) are waiting to see how vigorously President Bush will campaign, during his second term, for his proposal to amend the U.S. Constitution to prohibit state recognition of same-sex marriages. In his State of the Union message on Wednesday, the President reaffirmed his support for the idea, but did not give a sense of how hard he will push.

The most common procedure for enacting amendments requires that a proposed amendment garner a two-thirds vote in both houses of Congress in order to be sent out to the states for ratification. The chances remain slim that the proposal will get that vote in either house -- especially the Senate - but things can change quickly in Washington.

Moreover, there is another possible amendment procedure provided for under Article V of the Constitution: Two-thirds of the state legislatures may call for a "convention" to consider amendments. This route has never been successfully invoked, but it remains a possibility, especially in light of the gains made by anti-gay-marriage forces last November in eleven state initiative campaigns. In short, the issue of a federal constitutional ban on gay marriage will not go away any time soon.

In the next few columns, we will make some general observations on when amending the federal Constitution is a wise thing to consider, and apply those observations to the question of gay marriage.

The Entrenchment Effect and the Extraordinary Character of Federal Constitutional Amendments

It is generally recognized that federal constitutional law entrenches legal principles by taking them outside the normal scope of the political process. By this, we mean that requirements and prohibitions embodied in the U.S. Constitution and its interpretation are very difficult, if not impossible, to displace or even modify through conventional political channels. Indeed, one might reasonably say that nothing about the development or modification of constitutional law involves the conventional or normal operation of democratic politics.

Constitutional law develops in two ways. First, constitutional law evolves through judge-made interpretations of the Constitution in U.S. Supreme Court and lower court decisions. Concededly, there is a political dimension to judicial rulings (even constitutional decisions by courts can not be entirely isolated from the prevalent political culture of the United States). Yet judicial decisionmaking is not really political in the same sense that congressional lawmaking is political. And judicial decisionmaking is certainly not democratic, in that the will of the majority - at least as expressed through current statutes -- is often frustrated by what judges do.

Second, constitutional law evolves through the amendment process by which the text of the document is itself changed. Unlike judicial decisionmaking, this process is certainly political - amending the Constitution is accomplished by a "campaign" and a voting process that has many similarities to other elections. The relationship between the amendment process and democracy is more complex, however.

Recall that Article V mandates that three-quarters of the states - what is called a "supermajority" of states, if not of people -- must ratify an amendment before it takes effect. That means, in effect, that an amendment, to succeed, tends to have to attract overwhelming popular support. It also means that simple democratic majorities in the future may not be able to alter the amendment (which would, again, require a three-quarters state supermajority) or enact statutes inconsistent with it (for the Constitution is, by its own terms, supreme law).

The ability of the people in three-quarters of the states to control future decisionmaking by a simple national majority has virtues. But it is certainly in some tension with a simple definition of democracy as majority rule, and as rule by the people as they now exist, not as they once existed.

Finally, whether the amendment process is political and/or democratic, it certainly cannot be said to be normal or conventional. To the contrary, the amendment process has been successfully invoked only sporadically.

Put to one side the Bill of Rights (which essentially came with the constitutional package in 1787), and the post-Civil War Reconstruction amendments (which were adopted when much of the United States was under military occupation and which, accordingly, depended more on the persuasiveness of union bayonets than political argument).

Other than these, the amendments adopted during our constitutional history include only fourteen "normal" amendments in 215 years. And two of those - the Eighteenth, establishing alcohol Prohibition and the Twenty-First, which repeals the Eighteenth - more or less cancel each other out.

In sum, "extraordinary" is a more apt description of constitutional amendment than is "conventional."

The Differences Between Constitutional Interpretation by Courts, and Constitutional Amendment

Constitutional law is entrenched whether it develops through judicial interpretation or by constitutional amendment. Yet there is an important sense in which the legal substance of amendments is particularly difficult to alter.

Judicial interpretations of ambiguous language in the text of the Constitution are susceptible to being limited or overruled by subsequent decisions. The clarity and precision of any particular judicial decision or opinion will not immunize it from subsequent revision or rejection by the Court, because the Court engaged in the re-interpretative process can claim the same authority and legitimacy for its analysis as the Court that issued the initial interpretation of the disputed text. Stare decisis - the doctrine that precedent ought to be accorded weight - may tend to entrench certain Supreme Court decisions somewhat, but not all decisions, and not for all time.

Constitutional amendments are different. A clear and precisely-worded amendment cannot as easily be rejected by later judicial decisions, especially before the Amendment has become dated and the world has changed significantly due to the passage of time. As long as an Amendment is relatively fresh (a period more likely to be measured in decades, or even centuries, than mere years), a Court attempting to alter or negate the amendment's textual command has significantly less authority and legitimacy than the political process by which the amendment was ratified.

Over the very long haul, of course, the meaning of even a precisely crafted constitutional amendment can sometimes be transformed by judicial interpretation. (Certainly, the current Court's interpretation of the Eleventh Amendment bears little resemblance to the language of the text.)

But we submit that doing so is a much more demanding and costly undertaking for the Court than is a re-evaluation of any meaning assigned to a contested constitutional provision by the Court itself in an earlier case. Put simply, it is much easier for the Court to second-guess its own judgment, than to second-guess the judgment explicitly embodied in a clear constitutional amendment.

The Extraordinary Character of Amendments Should be Cause for Caution

Amending the Constitution thus uniquely immunizes a legal mandate from both normal political and judicial modification. No other political act can have such long-term, difficult-to-alter, and intrinsically anti-democratic consequences. While the Constitution itself provides virtually no substantive constraints on the content of potential constitutional amendments, these procedural consequences raise serious questions about the propriety and wisdom of any proposed amendment.

Some commentators have suggested that certain subjects or topics are particularly appropriate subjects for a constitutional amendment. For example, some people argue that amendments are especially proper to establish ground rules for the operation of the democratic system, such as access to the right to vote.

Meanwhile, other commentators urge that particular issues are distinctively inappropriate for resolution at the federal constitutional level. Among the examples given here are health and morality standards - such as the later-revoked prohibition on the manufacturing, sale, or transportation of alcoholic beverages.

While these arguments provide relevant background, we are not sure that, standing alone, they are persuasive enough to determine the legitimacy of any given amendment. We suggest here one alternative criterion that, we believe, ought to be of paramount importance - whether a proposed amendment is being used to short-circuit ongoing democratic deliberation.

The Short-Circuit Problem: When Amendments Bypass Democratic Deliberation

Our suggestion here is simple enough: The Constitution ought not be amended to forestall acceptance of legal developments that are beginning to receive serious attention and consideration for the first time, and are starting to gain democratic traction in the polity. Rather, those kinds of developments should be allowed to be fully considered in democratic debate.

Enacted at moments of high politics, federal constitutional amendments embed into our Supreme law principles that are intended to endure. That is their virtue. But that is also why we must be careful in using them.

We should ask, in essence: How will the mandate we are enshrining in today's proposed amendment look one, two or five generations from now? How likely is it to stand the test of time as an expression of principle, and not simply as an exercise of power?

An amendment that cuts off debate precisely at the time when people's views are evolving stands a high chance of looking anachronistic and embarrassing, just as the Eighteenth Amendment's prohibition of alcohol feels so dated and out of touch today.

Some may point out that we were able to "fix" the mistake of the Eighteenth Amendment by enacting the Twenty-First. Yet the latter was easily ratified because Congress committed ratification not to state legislatures, which had ratified the Eighteenth, but to special ratification conventions in each state. The Eighteenth Amendment's adoption by malapportioned state legislatures, perhaps unrepresentative of public views, may have made it particularly easy to undo. Thus, the Prohibition experience doesn't diminish the idea that avoiding constitutional mistakes in the first place is the wiser course.

Proper amendments should ordinarily seek to codify the resolution of an issue that already has been sufficiently vetted both by debate and experience. When long-term closure on a particular question has been reached - closure that would likely exist, more or less, even without the formalized act of an amendment - an amendment is appropriate, to memorialize and entrench the resolution that has been achieved, and to provide courts a means of enforcing it.

Anti-Same-Sex Marriage Amendments Inappropriately Aim to End A Long-term Debate

How do the current proposals to amend the Constitution to ban same-sex marriage fare under this test? We submit that they fail it pretty clearly. We believe same-sex marriage opponents can fairly be characterized as attempting to forestall democratic deliberation over the long term on this issue. And as we have noted, an amendment that has the purpose of doing this, is the very kind we consider inappropriate.

We start with two observations. First, legal rules relating to marriage have never been constitutionally codified at the national level.

There is no constitutional ban on incestuous marriages although, historically, the content of consanguinity laws has varied among the states. There is no constitutional ban on polygamous marriages - although controversy over this issue came close to starting a religious war in the United States. No federal constitutional amendment prohibits a state from recognizing a marriage between an adult and a child. The Constitution does not even explicitly prohibit coerced marriages. In all these situations, and with regard to myriad other questions about the nature and meaning of marriage, state law and federal statutory law are considered adequate to regulate marriage.

Moreover, the only times the Constitution has been applied directly to the regulation of marriage in over two centuries, judge-made constitutional doctrine has limited a State's ability to prevent people from getting married. Accordingly, the use of a constitutional amendment to restrict marriage arguably bears a greater burden of justification than an amendment regulating the franchise or office-holding, for example, since the latter subjects are so much more commonly recognized as the kinds of issues that require constitutional attention.

Second, it is only fairly recently that many Americans have begun to focus on, and think critically about, the historical presumption that marriage should be restricted to heterosexual couples. Attitudes about homosexuality have changed substantially over the last fifteen years. A broadly-based dialogue has begun.

That discussion takes place in businesses where companies wrestle with questions relating to the provision of employment related benefits to gay and lesbian couples. It takes place in churches and synagogues as clergy and congregations debate the morality of recognizing same-sex relationships for religious purposes. It is addressed in the halls of Congress, state legislatures, and city councils. And it is reflected in constitutional litigation evaluating both equal protection claims, and right of intimate association claims, relating to same-sex relationships.

Moreover, this new dialogue is no longer limited to a small segment of the population - a narrow class of intellectuals, the gay community itself, or activist judges. Millions of Americans have begun to question conventional responses to this issue. Three years ago, for example, thirty-nine percent of the California electorate voted against a state-wide initiative restricting marriage to a man and a woman.

More importantly, this dialogue is an inter-generational one. Americans under the age of thirty have strikingly different attitudes about same-sex marriages than do Americans over the age of sixty.

Given the reality that this dialogue is just getting under way, and that there has been so substantial a change in cultural attitudes in a short period of time, why should our society be contemplating a constitutional amendment to ban same-sex marriages now?

It is hard to avoid the conclusion that the purpose of this amendment is to prevent this dialogue from continuing. The goal would seem to be to prevent ongoing discourse and cultural change that might eventually be reflected in political decision making -- in essence, to short-circuit democratic deliberation about this normative issue before further changes in political attitudes occur.

If successful, the gay-marriage ban amendment would be the first pre-emptive constitutional amendment in American history. From a normative, if not a legal perspective, it constitutes a misuse of the amendment process.

The Differences Between State and Federal Constitutional Amendments

As we have discussed, all constitutional amendments have an entrenching effect to some extent. But our argument above extends only to amendments to the U.S. Constitution.

State constitutions are so much more easily amended than is their federal counterpart - most often by a simple majority vote of the state polity - that it is much harder to argue that such state amendments relating to same-sex marriage are short-circuiting democracy in the same way.

Further, proposals to amend state constitutions to ban same-sex marriage are legitimated by the ongoing litigation in many jurisdictions that seek to use state constitutional law to remove legal obstacles to such relationships. Perhaps because a political response to any of their decisions that the polity may reject is so feasible, state constitutional courts have not displayed as much caution and restraint as has the United States Supreme Court in developing constitutional doctrine in this area.

The Supreme Court in Crawford v. Bd. of Educ. of City of Los Angeles - which involved a popular initiative that reversed the California Supreme court's pro-racial-busing interpretation of the state constitution - has suggested that this distinction is valid. Crawford implicitly recognized that, if state supreme courts are going to interpret state constitutions expansively, as many state courts do, reaching substantially beyond federal constitutional mandates, then the people of the state must be able to use their political power to countermand those judicial decisions.

Let us be clear: We both would oppose such state constitutional amendments on the merits. But we do not condemn such efforts in the way that we do condemn anti-same-sex-marriage federal constitutional amendments, as fundamentally inconsistent with democratic norms.

In our next column, we will consider whether the arguments advanced about the need for a same-sex marriage ban in the federal Constitution can overcome our presumptive skepticism about the legitimacy of this amendment enterprise.


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 the University of California, Davis School of Law.

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