Time has come for federal marriage amendment

Posted: Jan 16, 2004 12:00 AM

It has been said that President Bush, if re-elected, intends to make his second term robust with big ideas. Perhaps one such idea he should seriously consider is supporting the Federal Marriage Amendment (FMA).
Some might respond that the FMA is not a big idea in the sense of being innovative. Marriage has traditionally been between a man and a woman. The FMA merely seeks to preserve that tradition.

 That's true. In my law school class on Domestic Relations, I remember the professor, herself no liberal, peremptorily dismissing a student's question as to why homosexuals could not get married.

 "Marriage, by definition, is between a man and a woman," she said. Her implication was that the concept of gay marriage was inconceivable both under the law and according to Webster's at the time. "Next question."

 But, as we know, much has transpired since then. There is probably no greater percentage of homosexuals today, but our traditional values and institutions have been under constant assault during the past 25 years, and damage has been done.

 The institution of marriage has been weakened to the point that a proposal to safeguard it legally could not be dismissed as redundant or superfluous. Indeed, given the recent U.S. Supreme Court decision legitimizing sodomy and the Massachusetts Supreme Court's ruling sanctifying gay marriage, a pro-active approach to rescue traditional marriage is essential.

 I don't buy the argument that marriage has eroded as part of an inevitable evolution of our moral fabric. Countercultural warriors have been waging a war against traditional values as part of a deliberate and sustained effort. Their success, despite their small numbers, is proof that activism and persistence work.

 Traditional values and institutions don't stand a chance unless traditionalists are willing to get in the fight. Without their engagement under strong generalship and careful organization, we might as well throw in the towel right now. The FMA should be part of any conservative battle plan to restore traditional norms.

 Congress passed the Federal Defense of Marriage Act (DOMA) in 1997. This law provides that, consistent with the Constitution's Full Faith and Credit Clause, federal territories and possessions and states may refuse to honor same-sex relationships that are treated as marriage under the laws of other states.

 The FMA would go further by constitutionally defining marriage as only between a man and a woman. The Amendment would forbid Congress, state legislatures, and federal and state courts from recognizing same-sex marriage. It would also prohibit the courts from sanctioning civil unions, while state legislatures would be free to do so. One of the purposes of the Amendment was to prevent activist courts, like the Massachusetts Supreme Court, from "legislating" into legitimacy same-sex marriages or unions.

 Some conservatives oppose the FMA, believing it doesn't go far enough because it wouldn't restrict Congress and state legislatures from recognizing civil unions, which they believe severely diminish the institution of marriage. Proponents of the Amendment argue that it goes just far enough. It expressly preserves traditional marriage and prohibits judicially created assaults on the institution, yet leaves the decision to sanction civil unions in the hands of the state legislatures, where it ought to be in a federalist system.

 I understand the argument that we should leave this decision to states, which have always had sovereignty over family law matters. But if a federal constitutional amendment prohibiting legislatures as well as courts from indirectly undermining traditional marriage by sanctioning civil unions or domestic partnerships could pass under the rigorous amendment procedures our constitution requires, I don't think the principle of federalism or state's rights would be significantly compromised. After all, in the ratification process, an overwhelming majority of states will have spoken democratically.

 But I favor the FMA primarily because it has a much more realistic chance of passing. A failed constitutional initiative of either variety might have the effect of strengthening gay marriage. And while the FMA would still allow state legislatures to recognize civil unions, it would not permit them to recognize same-sex marriages. And we must understand that homosexual activists consider marriage itself as the hill to die on. They know that unless they win the big prize of same-sex marriage, they might be able to weaken marriage but never defeat it.

 From my perspective, the FMA is a reasonable and principled measure designed to reinforce the moral foundation of our society by saving heterosexual marriage as its primary support. It would be gratifying if President Bush included it as one of his big ideas in his upcoming State of the Union address.