American Values - Gary L. Bauer, President

Op/Ed Article Article

When Courts Reinvent Marriage

Washington Post

10/01/2004

America suddenly finds itself in the middle of a national debate over the definition of marriage. Many Americans are perplexed by this debate, and understandably so. Marriage in the United States and throughout Western civilization has always meant the union of one man and one woman. Now that truth is under radical attack.

But while it is not surprising to see some on the political left embrace a radical new meaning of marriage, what has been surprising and disappointing is the confusion among some on the right who claim that a proposal to preserve marriage through a constitutional amendment violates the principle of federalism and restricts liberty The reality of the marriage debate is far different from such rhetoric.

For decades Americans have witnessed unelected judges remaking American society in ways that no elected legislature would even consider. No state legislature I know of has voted to ban the Pledge of Allegiance. Similarly, no state has as yet legalized homosexual "marriage" through the legislative process. Thirty-seven states, however, have expressly prohibited it.

A recent example of the blatant exercise of raw political power by the judiciary is the Supreme Court's arrogant invalidation of state sodomy laws in the Lawrence decision. Many legal scholars, left and right, see Lawrence as laying the legal foundation for homosexual marriage in America and, given the sweeping scope of that decision, I agree. I find it hard to believe that the same court that came to the conclusions in that case could in any way uphold state laws defending marriage.

And gay legal activists will never settle for a "civil unions" compromise short of marriage; they are already deriding the former as "separate but equal." In fact, homosexual-marriage advocates are already filing lawsuits in state courts seeking to overturn state "defense of marriage" laws based on the Lawrence opinion.

Some have argued that marriage law rests with the states and therefore a constitutional amendment is overreaching. I disagree. There is a clear precedent for the federal government to safeguard the definition of marriage. First, in 1862 Congress passed the Morrill Act prohibiting plural marriages throughout the western territories. In order to join the Union, Utah had to write into its state constitution a prohibition against polygamous unions. Second, in 1996, Congress passed the federal Defense of Marriage Act, whereby Congress defined marriage in federal law as the union of one man and one woman. The federal government saw the threat to marriage then and we see it today.

So the key question becomes: What is the appropriate response of the people's elected representatives to such a clear and present danger to the institution of marriage? I and others submit that a constitutional amendment is not only a wholly appropriate response but also probably our last best hope to preserve traditional marriage by taking this issue away from the courts. Polls show sizable majorities of the American people agree.

Consider what happens when the people's will is denied. In Massachusetts the Democrat-dominated legislature ignored the state constitution and failed to take a vote on a constitutional amendment that would have enshrined the age-old definition of marriage. The amendment's backers had secured the constitutionally required number of petition signatures to force a vote in the state Senate. But senators adjourned rather than take the vote -- which likely would have led to a landslide rejection of "gay marriage." Homosexual activists, who win most of their victories through unelected judges, hailed the lawmakers-turned-lawbreakers as heroes.

Following that triumph of raw power over the rule of law, the Massachusetts high court now is considering imposing legal homosexual marriage on that state. Lawsuits in other states and against the federal Defense of Marriage Act will surely follow, and the dominoes will fall one by one. Prudence requires that we remove the courts' power to redefine marriage against the will of the people.

America does have a stake in preserving marriage and the natural family (one man, one woman and children) as the bedrock of society. If passing a federal marriage amendment is the only way to stop tyrannical judges from forcing Americans to recognize gay "marriages" as the real thing, then our citizens need to roll up their sleeves and get the job done. That's not discrimination. It's common sense.

The writer is president of American Values, a public policy advocacy organization.