The 28th Amendment: It is time to protect marriage, and democracy, in America - Defense of Marriage Act may be in jeopardy

National Review, July 23, 2001 by Robert P. George

Marriage is so central to the well-being of children-and society as a whole-that it was, until recently, difficult to imagine that it might be necessary to mount a national political campaign to protect the institution from radical redefinition. Yet today it can scarcely be denied that such a campaign is needed.

Everybody knows that marriage is in trouble. The rise of divorce, illegitimacy, and cohabitation have all taken a toll. If the institution of marriage in our society is to be restored to good health, a reversal of trends and tendencies in all of these areas is required. Still, there is something unique in the threat posed by the movement for "same-sex marriage."

At the core of the traditional understanding of marriage in our society is a principled commitment to monogamy and fidelity. Marriage, as embodied in our customs, laws, and public policies, is intelligible and defensible as a one-flesh union whose character and value give a man and a woman moral reasons (going beyond mere subjective preferences or sentimental motivations) to pledge sexual exclusivity, fidelity, and permanence of commitment. Yet any argument for revising our law to treat homosexual relations as marital will implicitly do what clearheaded and honest proponents of "same-sex marriage" explicitly acknowledge: It will deny that there are such moral reasons. Any such argument would have to treat marriage as a purely private matter designed solely to satisfy the desires of the "married" parties. If that is the case, there is no principled reason marriage need imply exclusivity, fidelity, permanence, or even a limit of two people.

Thoughtful people on both sides of the debate recognize this. It is evident, then, that legal recognition of same-sex marriages, far from making marriage more widely available (as well-intentioned but misguided conservative advocates of same-sex marriage say they want to do), would in effect abolish the institution, by collapsing the moral principles at its foundation.

So while it is true, as Bill Bennett among others has acknowledged, that marriage in the past 35 years or so has been damaged more severely by heterosexual immorality and irresponsibility than by homosexual activism, it is also true that same-sex marriage, were it to be instituted, would strike a blow against the institution more fundamental and definitive even than the disastrous policy of "no- fault" divorce.

It is noteworthy that proponents of same-sex marriage have sought to change public policy through judicial decree. Where they have won, they have won through the courts. Where the issue has been settled in the court of public opinion, they have lost. The lesson is clear: If the institution of marriage is to be preserved, a campaign to settle the issue democratically at the national level must be mounted-and quickly.

At the time the U.S. Constitution was adopted, it was taken for granted that marriage is the union of a man and a woman ordered to the rearing of children in circumstances conducive to moral uprightness. Its legal incidents and civil effects were part of the common law and regulated by the states. There was no need at the time for marriage to be expressly defined or protected by federal law or the Constitution. Consequently, the word "marriage" does not appear in the Constitution (nor, for that matter, does the word "family"). Our forefathers shared the consensus of humanity, which viewed marriage as a union between sexually complementary persons-that is, persons of opposite sexes. The common law that we inherited from England was clear about marriage as the union of man and woman: "Marriage . . . includes the reciprocal duties of husband and wife."

Only in the last decade has our country's time-honored recognition that marriage is, in its very essence, the union of male and female come under attack in the courts. In the earliest phase of this campaign, activists tried to establish a right of marriage for same-sex partners through lawsuits in state courts premised on state constitutional guarantees. The strategy was to get some state supreme court to recognize same-sex marriage. Other states would then be compelled to recognize these "marriages," because of the constitutional requirement that states extend "Full Faith and Credit" to one another's "public Acts, Records, and judicial Proceedings."

The supreme court of Hawaii, purporting to interpret the state constitution, went so far as to hold in 1993 that the state's marriage law "discriminated on the basis of sex." A lower court acting on its instructions then found the marriage law unconstitutional-but stayed its order pending appeal. In the end, though, the courts did not get the final say. In 1998, the people of Hawaii, by a very substantial majority (69 to 31 percent), enacted a state constitutional amendment affirming the heterosexual character of marriage. Hawaii's same-sex marriage case had to be dismissed.

Undaunted, attorneys for homosexual activist groups continued to press the issue in other venues. In Alaska, a trial judge read that state's constitution to include a fundamental right to "choose a life partner." Again, the voters responded by backing a constitutional amendment defining marriage as the union of a man and a woman-by 68 to 32 percent. Other states, such as California, passed similar amendments by wide margins without even facing an immediate legal threat.