Why we need a federal marriage amendment

USA Today (Society for the Advancement of Education), Sept, 2004 by Mathew D. Staver

"We must draw a line in the sand and preserve marriage once and for all between one man and one woman."

ALTHOUGH FOR DIFFERENT reasons, same-sex marriage advocates and some states' rights proponents oppose amending the Constitution to protect marriage between one man and one woman. While states' rights are of paramount importance, it nevertheless is necessary that the Constitution be amended to protect traditional marriage.

Marriage between one man and one woman is, and always has been, a Federal matter, and the very act of amending the Constitution is all exercise in states' rights. To sanction same-sex marriage, would be to say that there is no relevance to gender, and thus result in the abolition of gender. Indeed, many same-sex and transsexual proponents advocate its abolition, stating that the concept of male and female is an outdated, stereotypic model.

Society never has supported every conceivable combination of human relationships. Utah's battle over polygamy is instructive. In 1862, Congress passed the Moral Act, which prohibited an individual from having more than one spouse, disincorporated the Mormon Church, and restricted its ownership of property.

In Reynolds v. United States, the Supreme Court upheld the Act, stating that polygamy always has been "odious" among the northern and western nations of Europe, and from "the Earliest history of England polygamy has been treated as an offense against society." The Court noted that "it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion."

In 1882, Congress passed the Edmunds Act, prohibiting polygamists from holding political office and disqualifying them from serving on juries. In 1887, Congress passed the Edmunds-Tucker Bill. It required, among other things, wives of polygamous relationships to testify against their husbands. On Oct. 6, 1890, the Mormon Church officially approved a manifesto mandating that it no longer sanction polygamous marriages.

As a condition for admittance to the Union, Congress demanded the inclusion of antipolygamy provisions in the constitutions of Arizona. New Mexico, Oklahoma, and Utah. For all but Oklahoma, the Enabling Acts made clear that the these provisions were "irrevocable." Furthermore, in order to change their laws to allow polygamy, each state would have to persuade the entire country to alter the marriage laws. Idaho adopted the constitutional provision on its own, but the 51st Congress, which admitted Ohio into the Union, found its constitution to be "republican in form and ... in conformity with the Constitution of the United States." To this day, Arizona, Idaho, New Mexico, Oklahoma, and Utah state in their constitutions that polygamy is "forever prohibited."

The Supreme Court has ruled that a juror who has a conscientious belief that polygamy is permissible may be challenged for cause in a trial for polygamy. Anyone who practices polygamy is ineligible to immigrate to the U.S.

If same-sex marriage were sanctioned, it virtually would be impossible to ban polygamy. Moreover, allowing same-sex marriage would likely take society one step closer to legalizing polygamy and polyamory (group marriage). When Tom Green was put on trial for polygamy in Utah in 2001, various articles and editorials appeared in several prominent publications supporting the practice. The American Civil Liberties Union has tried to downplay the idea of a slippery slope between gay marriage and polygamy, defending Green during his trial and declaring its support for the repeal of all "laws prohibiting or penalizing the practice of plural marriage." Steven Clark, director for the Utah ACLU, stated, "Talking to Utah polygamists is like talking to gays and lesbians who really want the right to live their lives."

While states have been permitted to regulate the edges of marriage, such as the ceremonies, dissolution, support, custody and visitation, they never have been allowed to modify its very essence--the legal union of one man and one woman.

Marriage will be national one way or another. Either the courts will dictate marriage policy or the people will. If a constitutional amendment is not enacted, the courts no doubt will alter traditional marriage policy. Last year, four of the seven state court justices in Massachusetts concocted a right to same-sex marriage in that state's constitution. (The original constitution of Massachusetts was drafted by John Adams. The nation's second president and a devout Christian.) Acknowledging that neither the history of the constitution nor the state statutes envisioned same-sex marriage, tour of the justices nevertheless imposed their own will upon the entire state. The citizens of Massachusetts were, therefore, left with no other choice but to overturn this radical decision by a slate constitutional amendment.

On Sept. 21, 1996, Congress passed the Federal Defense of Marriage Act. This law declared that no state or territory is required to recognize a same-sex marriage sanctioned by another state or territory. While designed to ensure that the sovereignty of a state is not overridden by another state's same-sex marriage law, there is no guarantee that this law will be upheld by the courts. Considering the judicial activism of the Massachusetts Supreme Court, we dare not trust the courts to hold sacred the institution of marriage. Considering the mobility and the impact that marriage has on transactions between the states, we would find ourselves broiled for years in endless litigation over whether one state should accept the same-sex marriage sanctioned by a sister state.