Posted on March 31, 2004

by

Daniel Clark

Contrary to the belief of some, the president's proposal for a constitutional amendment defining the institution of marriage is not an election-year gimmick aimed at shoring up support among his conservative base. In a way, that's too bad, because it would likely succeed in serving that purpose. Since it is instead a sincere effort to protect the definition of marriage from activist judges, it is doomed to failure.

Passing an amendment in order to restrain a rampaging activist judiciary is like throwing a lion a cheeseburger to make him stop chasing you. The courts will simply devour the morsel in stride, whetting their appetite as they continue to pursue their left-wing agenda.

The motivation for this amendment is sensible enough. When the state of Hawaii began discussing the legalization of gay and lesbian marriages, the Republican-controlled Congress passed the Defense of Marriage Act (DMA), which President Clinton signed into law in 1996. This law allows any state to refuse to recognize a gay marriage conducted in another state. The Bush administration has concluded that the act would be struck down upon appeal to the Supreme Court, based on the "full faith and credit" clause in Article IV Section1 of the Constitution.

That clause guarantees that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." A marriage license, being a public record, appears to be subject to this demand. This would mean that if Hawaii wanted to change the definition of marriage to include gays and lesbians, a gay couple from Kansas could fly to Hawaii to be married, then return home and force the state of Kansas to recognize their marriage, even though the voters of Kansas would not have approved of this redefinition.

The possibility of this happening became much more realistic when the mayors of San Francisco and New Paltz, NY began issuing marriage licenses to gay and lesbian couples in defiance of state laws. When one of the couples involved in these ceremonies returns home and claims to be married, that will provide the impetus for a challenge to the DMA. When that happens, Bush can anticipate that the Supreme Court will cite Article IV Section 1, while completely ignoring the fact that the marriage in question is illegal in the very state in which the wedding took place.

An amendment that would have the same effect as the DMA, in that it would prevent one state from imposing gay marriage on another, would be in direct conflict with Article IV Section 1. When devising its interpretation, the Court can be expected to balance the "interests" of one clause against the other, and prioritize the interests of the "full faith and credit" clause above those of the new amendment.

Therefore, the Bush tactic is to prevent any state from allowing gay marriages, by codifying the definition of "marriage" into the Constitution. At first glance, this looks like a sound strategy, for if the Constitution forbids a state from redefining marriage, then no public record can exist that would require the full faith and credit of the other states. Once any effort is made to draft such an amendment, however, its vulnerability becomes immediately evident.

The proposed Federal Marriage Amendment, twice introduced to the House by Rep. Marilyn Musgrave (R, Colo.) begins by stating that, "Marriage in the United States shall consist only of the union of a man and a woman."

In order to detect the flaw in this language, you may first need to put on your feeling cap (which is something like a thinking cap, but for liberals). Now, imagine yourself as an allegedly centrist Supreme Court justice, like Anthony Kennedy, David Souter, or Sandra Day O'Connor, and ask yourself to define "woman."

Must a woman have been born a girl, or can a boy grow up to be a woman as well? In the real world, that's a simple question to answer, but in the Sid and Marty Krofft-inspired wonderland that is the U.S. judiciary -- where words and phrases from the Constitution spring to life and chase each other around the parchment -- nothing is as it seems.

Say one of the petitioners in a legal challenge is a man who says he is really a woman trapped inside a man's body. What would the average Supreme Court justice make of that? Keep in mind that there would be a slew of amicus briefs filed by groups of psychiatrists and psychologists supporting the petitioner's claim.

Before you give your final answer, remember the majority opinion that Justices Kennedy, Souter and O'Connor all signed onto in the 1992 Planned Parenthood v. Casey decision. In that ruling, they actually stated as a matter of constitutional principle that, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." If this is true, as the Court somehow assumed it was, then that means the government cannot interfere with a man's right to define his existence as that of a woman, or to define the mystery of human life in such a way that a man can be a woman, and vice versa.

Consider also that the Supreme Court has over the last half-century created a broadly defined "right to privacy." Can it seriously be doubted that a majority of justices would find one's perception of one's own gender to fall under that heading?

The Casey ruling was a 5-4 decision, but since then, two justices -- liberal Harry Blackmun and conservative Byron White -- have been replaced by Clinton appointees Ruth Bader Ginsburg and Stephen Breyer. This means that "living Constitution" theorists now have a 6-3 advantage. In order to build the majority needed to support the marriage amendment, Bush needs a net gain of two justices.

The next Supreme Court justice to retire is likely to be Chief Justice William Rehnquist, who by most accounts is the third most conservative justice of the nine. If that turns out to be the case, then Bush will roughly break even by appointing Rehnquist's replacement. He would still need to make at least two more appointments, and he would only have a chance to do that if he wins re-election anyway.

Let's assume that he has the opportunity to make those appointments, that therefore the strict constructionists have a 5-4 majority on the court by January of 2009, and that the marriage amendment has by that time been ratified. There will surely in the meantime have been at least one state to have legalized gay marriages, and performed tens of thousands of them. The federal government could not then annul them all, because that would make the amendment an ex post facto law.

It doesn't have to come to that, because there's actually a much less time-consuming solution, and one that does not require any alteration to the Constitution. While Bush is probably right about the way the Supreme Court would rule on the DMA in light of the "full faith and credit" clause, that doesn't mean that the law is actually unconstitutional. To understand why, consider the remainder of Article IV Section 1, which goes on to establish that "the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

This is just what Congress did in 1996, when it drafted the DMA. Section 2 of that law says, "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such a relationship."

By writing this law, Congress merely exercised the power assigned to it by Article IV Section 1. It prescribed by a general law the manner in which a public record, in this case a marriage license, shall be proved valid. It also made it clear that "a relationship between persons of the same sex" is something other than a marriage, even if a state may decide to treat it as such. Therefore, recognition by one state of gay marriages performed in another is not required by the "full faith and credit" clause.

Since the Defense of Marriage Act is constitutional, there is no need to buttress it with a constitutional amendment. All that is needed is to prevent the Supreme Court from meddling with it, which Congress is empowered to do, by Article III Section 2 of the Constitution. That section outlines all the cases over which the Supreme Court is to have jurisdiction, but "with such Exceptions, and under such Regulations as the Congress shall make." If Congress removes marriage laws from the Court's jurisdiction, then the DMA cannot be struck down.

All this requires is a simple majority vote in each house of Congress, followed by the president's signature. It does not demand the two-thirds majority required for passage of an amendment, which would then need the approval of three-fourths of the states for ratification. More importantly, by removing the Supreme Court from the process, this approach adheres to one of the most important laws of the constitutional jungle: Don't feed the judges.

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