The right amendment

National Review, Jan 26, 2004

In 1998, Hawaii's Supreme Court attempted to foist gay marriage on that state. The voters amended the state constitution to preserve the definition of marriage as the union of a man and a woman. In 2001, gay activists found a more hospitable venue. Vermont's constitution is very hard for voters to amend. So the state courts could force civil unions on the state with little real danger of reversal. At the time, this magazine suggested that it was pretty clear where things were headed. The courts, both state and federal, were going to keep pushing gay marriage and gay marriage lite until they succeeded somewhere. Further legal actions would force the recognition of one state's gay marriages by all the other states. Or federal courts would, at some point, find the ground prepared for the national imposition of gay marriage. Whatever the precise methods, the courts would go as far in the direction of gay marriage as they could get away with. Each discrete step would be something that the public did not favor (and hence could not be enacted democratically) but also did not oppose so vehemently that it would be overturned.

We thought that the proper response to this campaign by legal activists and their judicial accomplices was a constitutional amendment. The Massachusetts high court's decision in favor of gay marriage in November 2003 has reinforced our view.

The public is beginning to see the danger that gay marriage will be brought to them without a vote. A New York Times poll in December found that 55 percent of Americans favor a constitutional amendment to define marriage in the traditional way. That is not a large enough number to ensure passage, but it is a strong one given how new the amendment is in the political debate.

Even among supporters of an amendment, however, there has been considerable disagreement about what precise form it should take. We have defended an amendment that would accomplish three things. First, it would reserve the word "marriage" for the union of one man and one woman: No court or legislature would be able to create "gay marriage."

Second, it would ban the federal or state governments--again, whether directed by a court or a legislature--from granting benefits that are conditioned on non-marital sexual relationships. Legislatures would be free to make a benefit, or civil-union status, available to unmarried persons. But availability must not be limited only to homosexual couples or to cohabiting heterosexuals. Siblings, friends, and roommates who are not in sexual relationships would also have to be eligible. A person's homosexuality would, in other words, not be of interest to the government when distributing any benefit.

Third, the amendment would block the courts, at both the federal and state levels, from second-guessing a legislature's decision to reserve a benefit for married couples. If the legislature has said that only married couples have joint adoption rights, for example, no court may grant that benefit to unmarried couples.

Some supporters of an amendment have wanted it to do more, and others less. The maximalists have wanted to ban all civil unions and other forms of marriage lite, and to deny certain benefits to homosexual couples. To accomplish these goals, however, would require the amendment to list in detail what benefits must be reserved to marriage. That would be unwise. The precise set of benefits that should attend marriage is not something that can be deduced from first principles. Different state legislatures may legitimately decide on different packages, as they always have. A maximalist amendment would be unwieldy, would delve into minutiae unsuitable for the Constitution, and would unduly limit the power of state legislatures. It would also be next to impossible to pass.

Most of the maximalists have now come around. The greater danger now comes from the minimalists. They want the amendment only to reserve the word "marriage" for the union of a man and a woman. State legislatures would be able to do anything else, including create civil unions for gays only that are legally identical to marriage in everything but name. The courts would be free to impose such policies, as well.

The minimalists have the ear of senior Republicans, and they are lobbying the White House to come out for their version of the amendment. That would be a mistake. As important as it is to prevent gay marriage, it is not the most important goal that an amendment should have. That goal is the end of judicial meddling with the institution. The campaign for an amendment should be as much for democratic self-government (and against judicial usurpation) as for traditional marriage (and against gay marriage). The minimalists' amendment, however, would allow the courts to impose Vermont-style civil unions on every state in the country.

We believe that it would be difficult, but possible, to pass the three-part amendment discussed above. Its proponents could say, truthfully, that the amendment would not keep gay couples from getting any particular benefit at all, except for governmental recognition of their sexual relationships. That should be defensible political ground for President Bush to hold.