Not so fast, Mr. President
Paul Greenberg (archive)
March 1, 2004 | Print | Send
George W. Bush has concluded that the way to bar homosexual marriage from being legal throughout the country is to amend the U.S. Constitution. All because of a 4-to-3 decision introducing it in Massachusetts.
Wait a minute, wait a minute! What happened to states' rights? Just because one state supreme court has given Gay Marriage its blessing, why amend the Constitution of the United States? The rest of us can keep our own marriage laws, can't we? Didn't Congress passed a Defense of Marriage Act that'll let us do that?
Not necessarily. Standing in the way are those troublesome (and necessary) words that lead off Section 1, Article IV of the Constitution of the United States: "Full Faith and Credit shall be given in each State to the Public Acts, Records, and judicial Proceedings of every other State..."
A decision by the Supreme Judicial Council of Massachusetts certainly sounds like a judicial proceeding. Which means a marriage there between husband and husband, wife and wife, would apply in every other state.
The president has seen the writing on the wall, or rather the Full Faith and Credit clause in the Constitution, and decided there's nothing else to do but change the Constitution.
It's one thing for a Massachusetts court to revise the traditional definition of marriage in that state. It's another when, thanks to the Full Faith and Credit clause, it could redefine marriage throughout the country.
But the Constitution of the United States is not a document to be lightly amended, no matter how good an idea those first 10 amendments were - not to mention quite a few of the others. Isn't there a better way for the rest of the Union to assert its right to be left alone, and not have this kind of "marriage" foisted on us?
There may be. It's always dangerous to read the Constitution, or any document, only in part. Because right after that clause about extending full faith and credit to the judicial proceedings of other states, there's this out:
"And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."
Some policies adopted by some states may not have to be adopted by all. Indeed, the federal Defense of Marriage Act is based on just that theory.
But will the Defense of Marriage Act stand up in court? After all, each state is supposed to be a laboratory of democracy, not dictate to all the others. Why not fight this out in the courts before amending the Constitution?
Yes, that kind of self-restraint would take patience. Also a measure of faith, hope and charity. But wouldn't it be better to see what the courts have to say before undertaking the long, serious process of amending the Constitution of the United States? Even in an election year, surely there are some issues that can be discussed civilly, patiently, reverentially.
Who knows, the people of Massachusetts may have something to say on this issue, too. They could amend their own state constitution while this case was wending its way through the courts, and reverse the single 4-to-3 decision that set off the whole foofaraw. Which would save the rest of us a lot of trouble, and keep the Constitution of the United States as concise as it is.
If the people of Massachusetts want to legalize this kind of marriage, that's Massachusetts' business. Granted, there are certain laws and traditions - and instincts - that no state should be allowed to violate. The taboo against incest, for example. And the federal government, quite rightly, drew the line at accepting polygamy before admitting Utah to the Union.
But so long as Massachusetts does not force the rest of us to go along with its supreme court on this issue, surely the Union can abide this exercise of states' rights, or even a state's wrongs. If we don't have to imitate it, we ought to be able to tolerate it. It is only when such "marriages" in Massachusetts become the law in the rest of the Union that tolerance becomes tyranny.
Some states might like to follow Massachusetts, while others would deny homosexuals the covenant of marriage, and still others - the most sensible and fair, some of us would argue - will offer citizens some form of domestic partnership or civil unions. Not just homosexuals need apply. Think of elderly sisters or trusted friends who want to assure their inheritance or hospital visitation rights. The nature of civil unions could be as varied as, well, the states of the Union. It's a big country. There is no reason to make it a uniform country. That's the genius of states' rights.
On the same day the president was coming out for a Marriage Amendment, the Supreme Court of the United States accepted a case involving how far the Constitution's full-faith-and-credit clause extends. For now the courts remain the next best hope of keeping Massachusetts law from becoming national law.
In the end, those of us who wish to preserve the traditional meaning of marriage, and its reverential tie to millennia of human history, may be obliged to push for a constitutional amendment. But that serious step ought to be the last resort, not the next-to-last resort.
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