Three Bad Reasons--and One Very Good Reason--to Oppose a Constitutional Amendment Barring Same-Sex Marriage

By MICHAEL C. DORF

Wednesday, Feb. 18, 2004

Recently, the Massachusetts Supreme Judicial Court affirmed that the state constitution requires the recognition of same-sex marriage--and not just civil unions. Among opponents of same-sex marriage, the ruling has revived interest in a proposed federal constitutional amendment that would define marriage throughout the country as "the union of a man and a woman." The amendment has been pending in Congress since May 2003, but now it may move to the front burner of American politics.

Presidents do not have a formal voice in the adoption of constitutional amendments, which become effective upon passage by a two-thirds vote in each house of Congress and ratification by three-fourths of the state legislatures. Nonetheless, support for, or opposition to, the proposed amendment could well become an issue in the 2004 Presidential election.

Senator John Kerry, the Democratic Presidential frontrunner, hales from Massachusetts, and though he opposes same-sex marriage while favoring legal recognition for civil unions, that distinction may be difficult to explain to the sort of swing voters who pay only intermittent attention to politics, yet can play the crucial role in a close election. And President Bush, who appears determined not to neglect his socially conservative base, may view same-sex marriage as the sort of wedge issue that enables him to attract even those voters whose economic interests might be better served by policies favored by Democrats.

Politics aside, is the proposed amendment a good idea or a bad one? My own unequivocal answer is that a constitutional ban on same-sex marriage would be horrific. Marriage is a basic civil right, which, if offered to straight couples, cannot be denied to gay or lesbian couples without branding the latter as second-class citizens.

Yet some opponents of the same-sex marriage ban have gone further, arguing that the constitutional amendment would be a bad idea even if one thought that the institution of marriage should be reserved for heterosexual couples.

In support of this view, they invoke three notions: states' rights; the idea that constitutional amendments can legitimately expand, but not contract, individual rights; and a general hostility to constitutional amendment.

None of these three arguments survives close analysis. Opponents of the same-sex marriage ban would do better to focus on its real flaw: it is morally repugnant

Existing Law Regarding Same-Sex Marriage in the United States

Currently, no state officially recognizes same-sex marriage. In response to a judicial ruling by the Vermont Supreme Court, that state permits same-sex couples to enter into civil unions that provide the same legal benefits as marriage. A number of other states and some municipalities have similar laws. But as the Massachusetts Supreme Judicial Court ruled, this status is not quite the equivalent of marriage; even if states grant same-sex couples the economic and other benefits of marriage, denying the formal status of marriage is a gratuitous insult.

Under the Massachusetts Court's rulings, that state will have to begin granting full marriage rights to same-sex couples later this year. Efforts are underway to amend the Massachusetts constitution and thereby reverse the state high court's ruling. However, under the state constitutional procedures, any amendment would not take effect for several years. Thus, at least in the short run, there is no question that one state--Massachusetts--will grant marriage licenses to same-sex couples.

Will Other States Have to Recognize Massachusetts Same-Sex Marriages?

Opponents of same-sex marriage fear that Massachusetts will become a haven for gay and lesbian couples from around the country to tie the knot, much as Nevada (with its permissive standards) has long been a magnet for straight couples seeking "quickie" marriages or divorces. Are these fears realistic?

The answer is unclear. Article IV of the federal Constitution requires that each state grant "full faith and credit" to "the public acts, records, and judicial proceedings" of its sister states. Ordinarily, that includes marriage certificates, but a murky judge-made exception to the full-faith-and-credit requirement permits states to deny recognition to out-of-state marriages on public policy grounds. States whose public policy condemns same-sex marriage might be able to invoke this exception to deny recognition to Massachusetts weddings.

Moreover, a federal statute, the Defense of Marriage Act or "DOMA," specifically authorizes states to deny recognition to same-sex marriages of sister states. But the statute may not be constitutional. The federal Constitution empowers Congress to prescribe the "manner" in which states accord full faith and credit; yet, it does not appear to give Congress the authority to regulate the substance of full faith and credit. Establishing rules of evidence for proof that a marriage was performed would clearly fall within congressional power; establishing rules about who can marry whom would not.

Accordingly, if no judge-made public policy exception permits states to deny recognition to same-sex marriages performed in other states, and if DOMA is unconstitutional (as I believe it is), then beginning in May (when the Massachusetts ruling goes into effect), every state in the country would be required to recognize Massachusetts same-sex marriages.

How a Constitutional Amendment Would Change the Law

The proposed constitutional amendment would change that, however. It would make clear that no state would have to grant recognition to same-sex marriages.

Indeed, the proposed amendment would go considerably further than DOMA. It would affirmatively prohibit states from recognizing same-sex marriages even if they wanted to for purely internal purposes.

Under the proposed amendment, then, Massachusetts could not recognize even its very own same-sex marriages--or, say, those performed in Ontario or the Netherlands, where they are legal.

The proposed amendment would thus define marriage throughout the United States, at every level: national, state and local.

Is the Proposed Constitutional Amendment Inconsistent with States' Rights?

Some opponents of the proposed constitutional amendment argue that it would inappropriately intrude into the domain of the states. Marriage, they say, has traditionally been governed by state law, and so if Massachusetts or some other state decides (whether legislatively or by judicial interpretation of the state constitution) to recognize same-sex marriages, people in other states have no business interfering with that decision.

The states' rights argument is both disingenuous and wrong. It's disingenuous because the opponents of the proposed constitutional amendment also typically argue that DOMA is unconstitutional in limiting the full faith and credit due to same-sex marriages. In other words, proponents of same-sex marriage think that if any state recognizes same-sex marriages, then all states must do so as well.

That may well be a sound interpretation of the Full Faith and Credit Clause, but it's hardly consistent with the claim that the question whether to recognize same-sex marriage should be left to each individual state.

Moreover, it's wrong to suggest that the federal Constitution does, or should, leave the definition of marriage entirely to the states. Virginia used to prohibit marriages between blacks and whites, but in the 1967 case of Loving v. Virginia, the Supreme Court--quite correctly--held that the prohibition violated the Fourteenth Amendment's Equal Protection Clause. And, had the Court decided Loving the other way, it would have been entirely appropriate for the People to have amended the Constitution to require states to recognize interracial marriage.

Should Constitutional Amendments Ever be Used to Shrink Individual Rights?

Is there a difference, however, between the proposed constitutional amendment mandating opposite-sex marriage only, and my hypothetical amendment requiring state recognition of interracial marriage?

One argument now being advanced against the proposed constitutional amendment suggests that there is an important distinction between expanding constitutional rights by banning a form of discrimination--as in my hypothetical example--and restricting rights by requiring a form of discrimination--as the actual proposed amendment barring same-sex marriage would do. Opponents argue that such an amendment would be the first such retrenchment in the history of the American Constitution.

There is a genuine distinction between the hypothetical and actual proposed constitutional amendments, but not the one being touted. Prior constitutional amendments have in fact shrunken rights, and appropriately so. Before the Civil War, many state constitutions were interpreted to recognize slaveowners' legal right to property in other human beings. The Thirteenth Amendment, in abolishing slavery, eliminated what had previously been an economically valuable (though morally odious) right.

Likewise, in the late nineteenth and early twentieth centuries, state and federal courts often treated laws regulating relations between capital and labor as illicit "class legislation" that impermissibly discriminated against the wealthy. In the 1930s, President Franklin D. Roosevelt and his allies were prepared to propose a constitutional amendment that--from the perspective of a great many people--would have authorized discrimination against rich people.

That amendment was rendered unnecessary when the Supreme Court, in the so-called "switch in time that saved nine," essentially abandoned the project of reading the Constitution to protect the rich. But it's fair to view modern constitutional doctrine as accomplishing through the courts what Roosevelt sought to accomplish by constitutional amendment.

Of course, I do not mean to say that there is no difference between, on the one hand, depriving people of slaves and requiring employers to pay their workers a decent wage, and on the other hand, denying same-sex couples the marriage status afforded to opposite-sex couples. There is an enormous moral distinction. But the distinction is not between expanding rights and contracting rights: it's between adjusting the allocation of rights for a good cause, and adjusting them for a bad one.

Do Opponents of Same-Sex Marriage Suffer from "Amendmentitis?"

Yet another morally neutral argument offered against the proposed amendment barring same-sex marriage says that whatever one thinks about same-sex marriage, it's not the sort of issue that warrants a constitutional amendment. Americans, the argument goes, suffer from what Stanford Law School Dean and constitutional scholar Kathleen Sullivan once called "amendmentitis," a desire to amend the Constitution at the drop of a hat.

Sullivan is doubtless correct that some matters are not fit subjects for constitutionalization. Tax rates, for example, should be subject to frequent adjustment depending upon economic conditions as judged by Congress, rather than fixed by a constitutional amendment.

But as Sullivan herself has observed, our Constitution has been amended with remarkable infrequency. In the last two hundred years, there have been only seventeen amendments.

To be sure, thousands of amendments have been proposed. But because the Constitution requires that amendments obtain super-majorities in both houses of Congress, and an even larger super-majority of state legislatures, nearly all of these proposals have been defeated.

In light of this history, it seems fair to say that we don't need a working presumption that tinkering with the Constitution is a bad idea to protect us from amendmentitis. The evidence indicates that the arduous amendment procedure set forth in Article V provides us with robust immunity against any ill effects of that disease. If a proposed amendment is ill-advised or not truly important, it will be unlikely to secure the votes necessary for its adoption.

The Real Reason to Oppose a Constitutional Ban on Same-Sex Marriage

That brings us to the real and obvious objection to the proposed constitutional ban on same-sex marriage: it's a terrible idea.

For one thing, the proposal now pending before Congress would bar not only same-sex marriage itself, but also any of "the legal incidents" of marriage. That means that states and cities could not even provide for civil unions or domestic partnership arrangements that fall short of marriage. So it is not just be Massachusetts' pioneering recognition of same-sex marriage itself that are under threat. Other states' alternative solutions (summarized by Joanna Grossman in a prior column) would also be rejected.

More broadly, there is simply no good reason why the government should confer official recognition and financial benefits on straight couples, while refusing the same to gay and lesbian couples.

Many people, of course, object to same-sex marriage on religious grounds, and it is accordingly their right to practice a religion that does not recognize same-sex marriage. But the legal institution of marriage is distinct from the religious one. No church, synagogue, or mosque will be forced by the government to recognize or perform same-sex marriages. Even in Massachusetts, the mandate affects county clerks, not country priests.

Nor does the fact that heterosexual marriage plays an important role in providing a stable environment for child-rearing distinguish it from same-sex marriage. The law has never denied the right to marry to infertile heterosexual couples, or to heterosexual couples that do not wish to raise children. And conversely, increasing numbers of gay and lesbian couples choose to have and raise children.

In the end, the argument against same-sex marriage comes down to the claim that it is somehow a threat to traditional marriage: Thus Congress enacted the Defense of Marriage Act, to defend the institution of marriage against an ostensible attack from same-sex marriage.

Apparently, people who oppose same-sex marriage think that loving committed relationships among gays and lesbians are so different in kind from loving committed relationships among heterosexuals, that dignifying the former with the term "marriage" makes a mockery of heterosexual marriage.

I understand that a majority of Americans feel this way, but that doesn't make it so. Gays and lesbians asking for the right to marry, far from undermining the traditional institution of marriage, pay it homage.

The struggle for a right to same-sex marriage requires for its success that the millions of people of good will, who nonetheless oppose that right, be made to understand that what they regard as a matter of principle is ultimately a prejudice. But to persuade such people will require that the real issue--the moral issue of equality--be tackled head on. Arguments rooted in states' rights, and the supposed sanctity of the existing constitutional text, just won't cut it.


Michael C. Dorf is Professor of Law at Columbia University. His new book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases.

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