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Marriage and the Constitution: Time for an amendment?

By Steve Farrell
web posted March 8, 2004

Do we need to amend the Constitution to defend the age old tradition of marriage? Professor Richard Wilkins, former Assistant to the Solicitor General of the United States, and the founder and managing director of Defend Marriage (a project of United Families International), believes so.

A little over a week ago, he asked me to join Defend Marriage as their press director. I accepted; and why not? Is there a more vital cause? The traditional family is the transmission belt of the values of a free society. You know this. I know this. Our enemies know this. Destroy the family, and a nation is ripe for revolution. Let's not mince words. The family is key; and there are forces that would like to take the traditional family out, forever.

We can't let them.

Despite the settled belief that this is true, however, Wilkins notes, many are confused as to why the federal constitution needs to be amended to save marriage. "Isn't this an issue for the states?" they ask. "Won't this diminish the 'sacred nature' of the Constitution?" others wonder.

"These are substantial concerns," he says. "However, these very concerns – rather than suggesting that we "leave the Constitution alone" – now impose upon the people a duty to provide a constitutional definition for marriage. Unless the people clearly establish the constitutional meaning of marriage, the judges will do it for us – and, in the process, erode the very idea of a written Constitution, expand judicial power and upset the vital balance of power established by the Framers of the United States Constitution."

Good points. Professor Wilkins suggests we consider the following:

  • Although it appears the Constitution was written to leave questions like marriage to the states, this has not stopped federal courts from intruding where the Constitution gives them no license to tread. The United States Supreme Court has decreed that states can not 'demean' any adult consensual sexual relationship. Lawrence v. Texas. This new rule – nowhere supported by the text of the Constitution nor by the history, traditions or practices of the American people – will shortly require all states in the nation to recognize any and all consensual sexual relationships as 'marriage.' The Massachusetts Supreme Judicial Court, in mandating homosexual 'marriage,' merely applied the reasoning of the U.S. Supreme Court to its state constitution. The Mayor of San Francisco, in unilaterally issuing marriage licenses contrary to controlling California law, similarly relied upon the reasoning of Lawrence to defend the legality of his actions.
  • Therefore, whatever the Constitution once provided, all rules related to marriage have now been subsumed by a 'constitutional analysis' previously unknown to the law. State legislatures, and the people they represent, no longer control the meaning of marriage or the hundreds and thousands of legal rules associated with marriage. All such questions, henceforth, will be governed by decisions of state and federal courts. And, in light of the expansive 'constitutional analysis' adopted in Lawrence, those decisions will not be guided by either the words of the Constitution nor the traditions, history and actual practices of the American people.

"In light of the foregoing, anyone concerned about preserving the structure and content of the American Constitution should understand why the words 'marriage' and 'constitutional amendment' need to be linked, to save the social viability of marriage, and integrity of the Constitution itself."

He makes good sense. He continues:

"1. A Constitutional amendment will restore the crucial understanding that American government operates under a written Constitution.

"As Chief Justice John Marshall noted in the famous decision of Marbury v. Madison in 1803, America is governed by "a written constitution" and "the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature." (Emphasis by Justice Marshall.) Because America operates under a written Constitution that is as binding on the courts as on any other branch of government, judges must adhere to the text of the Constitution and interpret and apply its terms consistently with the traditions, history and actual practices of the American people. Any other course, as Chief Justice Marshall noted in Marbury, "would subvert the very foundation of all written constitutions."

"Modern courts have dangerously ignored the teachings of Marbury.

"The 'constitutional analysis' announced by the Supreme Court in Lawrence tears judicial review away from the words of the document as well as the traditions, history and actual practices of the American people. Many law professors and philosophers enthusiastically applaud the idea of a "living Constitution;" a document that transcends words, definitions and the restrictive bonds of history and tradition. But a document as fluid, unfettered and free as the "new Constitution" unveiled in Lawrence bears little resemblance to the Constitution that, for most of its 215-year history, has provided for the democratic, legislative resolution of most controversial moral and social debates.

"Under the "new Constitution" announced in Lawrence, the more divisive, difficult and debatable the controversy, the more likely it is that a court – rather than a legislature – will settle the matter. That is not the Framer's Constitution. It is not what the written text demands. But it is what the courts have now decreed.

"Modern courts feel free to ignore or alter the text of the constitution at will. A constitutional amendment on marriage, by forcefully rejecting the judges' latest excursion from constitutional text and history, will forcibly – and properly – remind the judges that their role is to adjudicate, not legislate. A constitutional amendment is necessary to revive the idea that is 'the very foundation of all written constitutions;' that is, that the Constitution provides 'a rule for the government of courts, as well as of the legislature.' Marbury v. Madison (emphasis in original)."

The courts need to be checked. He adds:

"2. A constitutional amendment will restore the proper balance of power between the judiciary and the representative branches of government.

"Under the 'new Constitution" drafted by the Supreme Court in Lawrence, state legislatures may no longer intrude upon 'liberty interests' closely connected with an individual's own views regarding 'the meaning of life' and 'mystery of the universe.' But if the definition of marriage (an understanding as old as time) violates constitutional strictures, what democratic judgments will the 'mysteries of the universe' invalidate next? No one knows. The judges have given us a poem – a poem as vague, expansive or restrictive as the next metaphor or lyrical couplet favored by five members of the Supreme Court.

"Modern social activists (and too many judges) have either forgotten or chosen to ignore that most governmental decisions are not controlled (and can't be controlled) by the precise language of the Constitution. If the 'correct' answers to pressing questions are fairly debatable, those questions must be – indeed, can only be – resolved by legislative action."

Professor Wilkins and Defend Marriage wants the power to return to the people:

"The expanding reach of American constitutional law has rendered the public increasingly oblivious to its role as the primary source of decision making power under the United States Constitution. By inventing and enforcing "rights" nowhere evident in the language of the Constitution or the history and traditions of the American people, lawyers, judges and law professors have slowly eroded democratic decision making, reducing or eliminating the people's popular control over an ever-expanding range of fairly debatable controversies.

"The Constitution was not drafted, nor was it intended, to turn over marriage and marital policy to the federal courts. Because the courts have now concluded otherwise, a constitutional amendment is needed to restore democratic balance. Without a constitutional amendment, the Supreme Court – and not the people – ultimately will determine what marriage means. With all due respect to the Honorable Court, this is too important a decision to be made by five people in black robes."

He concludes:

"The Founders did not explicitly put marriage in the Constitution. But the courts have.

" By placing marriage in the Constitution, the judges have taken marriage out of the realm of representation and have placed in their court. By so doing, the judges have done violence to the very idea of a written Constitution, have eroded legislative power, and have significantly expanded their own power.

"A constitutional amendment is needed, not only to preserve marriage, but to restore constitutional order."

I agree. We can't turn over the fate of the family to five folks in robes. Judicial tyranny is not for you and not for me. It's time to reign these judges in, and remind them that constitution's are set up to preserve the values of a society, not overthrow them.

Sign the petition in support of a constitutional amendment to defend marriage by visiting www.defendmarriage.org. Contact Steve at stevenmfarrell@cox.net.

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