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Hands Off Constitutions
This Isn't the Way to Ban Same-Sex Marriage

By J. Harvie Wilkinson III
Tuesday, September 5, 2006

The chief casualty in the struggle over same-sex marriage has been the American constitutional tradition. Liberals and conservatives -- judges and legislators -- bear responsibility for this sad state of affairs.

Twenty states have constitutional amendments banning gay marriages; many more are in the offing. On the ballot this fall in Virginia and five other states will be proposed constitutional amendments banning gay marriage. Passage of the amendments is all but foreordained, but the first principles of American law will be further endangered.

Judges began the rush to constitutionalize. The Massachusetts Supreme Court concocted a state constitutional right to marry persons of the same sex. The court went on to say that opposing views lacked so much as a rational basis. In other words, centuries of common-law tradition, legislative sanction and human experience with marriage as a bond between one man and one woman were deemed by that court unworthy to the point of irrationality.

It would be altogether understandable for Congress and state legislatures to counter this constitutional excess with constitutional responses of their own. Yet it would be the wrong thing to do.

The Framers meant our Constitution to establish a structure of government and to provide individuals certain inalienable rights against the state. They certainly did not envision our Constitution as a place to restrict rights or enact public policies, as the Federal Marriage Amendment does.

Ordinary legislation -- not constitutional amendments -- should express the community's view that marriage "shall consist only of the union of a man and a woman." To use the Constitution for prescriptions of policy is to shackle future generations that should have the same right as ours to enact policies of their own. To use the Constitution as a forum for even our most favored views strikes a blow of uncommon harshness upon disfavored groups, in this case gay citizens who would never see this country's founding charter as their own.

Let's look in the mirror. Conservatives who eloquently challenged the Equal Rights Amendment and Roe v. Wade for federalizing core areas of state law now support an amendment that invites federal courts to frame a federal definition of marriage and the legal incidents thereof.

Proponents of the amendment say that states need protection from activist judges in other jurisdictions, but states already have this protection through the Defense of Marriage Act and public policy defenses allowed under the full faith and credit clause. As a result, a constitutional amendment is at most a backstop for powers that states possess without any congressional action at all. There is no greater need for such a constitutional backstop here than there is for a constitutional amendment bolstering states' authority to pass a sales tax, establish a transportation department or support public education.

The Federal Marriage Amendment has helped spread the constitutional fever to the states. State constitutional bans on same-sex marriages vary considerably in their wording, particularly with respect to civil unions. But most would repose in judges the authority to interpret such ambiguous terms as "domestic union," "similar to marriage," "rights, obligations, privileges and immunities of marriage," "incidents of marriage" and so forth. Thus the irony: Those who wish to curb activist judges are vesting judges with unprecedented interpretative authority whose constitutional nature makes it all but impervious to legislative change.

To constitutionalize matters of family law is to break with state traditions. The major changes in family law in the 19th and 20th centuries, such as the recognition of married women's property rights and the liberalization of divorce, occurred in most states at the statutory level. Even the infamous bans on interracial marriage were adopted nonconstitutionally by 35 states, and by constitutional amendment in only six.

Where is the threat that justifies so radical a break with our constitutional heritage? State courts in Georgia, New York and Washington have recently rejected invitations to follow Massachusetts and find a right to same-sex marriage in their constitutions. The great majority of state court judges -- more than 80 percent by some counts -- are subject to election in some form and unlikely to overturn state legislatures on so volatile a matter as same-sex marriage. States have numerous tools that enable them to reject objectionable marriages from other jurisdictions -- tools that have long been the basis for refusing to recognize marriages involving polygamy, incest, and underage or mentally incompetent parties.

I do not argue that same-sex marriage is a good or desirable phenomenon, only that constitutional bans on same-sex unions carry terrible costs. Partisans see only one side of a profound controversy when in fact there are two. It is not wrong for gay citizens to wish to share fully in the life of this country, to partake of its most basic and sacred institution, and to experience the intimacy, bonding and devotion to another that only an institution such as marriage can bring. To embrace this view one need not believe that sexual infidelities will disappear but only that many gay couples will make good on their vows and lead fuller, richer and more productive lives as a result.

That, however, is hardly the end of the matter. Marriage between male and female is more than a matter of biological complementarity -- the union of the two has been thought through the ages to be more mystical and profound than the separate identities of each alone. Without strong family structures, there will be no stable and healthy social order, and alternative marriage structures might weaken the sanction of law and custom necessary for human families to flourish and children to grow. These are no small risks, and present trends are not often more sound than the cumulative wisdom of the centuries.

Is it too much to ask that judges and legislatures acknowledge the difficulty of this debate by leaving it to normal democratic processes? In fact, the more passionate an issue, the less justification there often is for constitutionalizing it. Constitutions tempt those who are way too sure they are right. Certainty is, to be sure, a constant feature of our politics -- some certainties endure; others are fated to be supplanted by the certainties of a succeeding age. Neither we nor the Framers can be sure which is which, but the Framers were sure that we should debate our differences in this day's time and arena. It is sad that the state of James Madison and John Marshall will in all likelihood forsake their example of limited constitutionalism this fall. Their message is as clear today as it was at the founding: Leave constitutions alone.

The writer is a judge on the U.S. Court of Appeals for the 4th Circuit.

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