Our country faces a push for a Constitutional amendment that, if enacted, would limit the rights of a specific group of people, and therefore be unprecedented in our history. This effort, with its link to gay marriage, has become an election-year flashpoint.
A more perfect union?
Push to amend Constitution to define marriage sparks national debate
By Ann Freeman
Do you remember your junior high school civics class? For many Americans, learning about our democracy and its foundation--the U.S. Constitution--was, well, pretty boring. Now, as adults, we have to play catch-up because the Constitution has come out of the closet we stuffed it into in favor of more interesting teenage pursuits and onto the front page of the nation's newspapers. Our country faces a push for a Constitutional amendment that, if enacted, would limit the rights of a specific group of people, and therefore be unprecedented in our history. This effort, with its link to gay marriage, has become an election-year flashpoint.
Every law in America is hung on the Constitution. We can't enact a law that goes against it and even the U.S. Supreme Court can't undo a constitutional amendment. Its framers created a living, elastic document, allowing Congress to make amendments to address changing times and social mores, to extend rights to more citizens, and to assure equality under the law. The overarching purpose of the Constitution is to protect the rights of a minority against possible domination from the majority.
Since the Constitution is so powerful, the framers made amending it a difficult process--it takes two-thirds passage by both houses of Congress and ratification by three-fourths of the states. Only a new amendment can repeal an existing amendment. And that's only happened once--in 1933--when the 21st Amendment was enacted to repeal prohibition (the 18th Amendment). Since the Constitution was created in 1789, there have been more than 10,000 attempts to amend it, but just 27 have succeeded.
In late February, President Bush called on Congress to amend the Constitution to declare that marriage in the United States shall consist only of the union of a man and a woman. The Federal Marriage Amendment (FMA) has been introduced in both the House and Senate.
In addition, approximately two dozen states--including Minnesota--are considering amendments to their state constitutions to prohibit same-sex marriage. In some cases, the proposed amendments--including Minnesota's--would also prohibit the legal equivalent of marriage (civil unions) and the domestic partner benefits now enjoyed by some gay families in both the public and private sectors.
This move to constitutionally ban same-sex marriage has set off a wildfire of debate about using the Constitution to, in effect, limit rights and has further ignited the emotional and divisive debate about gay rights and gay marriage.
Dale Carpenter, associate professor of law at the University of Minnesota and an expert on Constitutional law, agreed to answer a few questions posed by this debate.
Q: What are the arguments for and against the use of the U.S. Constitution to define marriage?
The argument for such an amendment stems from the traditional understanding of marriage--the union of one man and one woman--as a valuable and important definition of the institution. Proponents argue that this definition is endangered by activist courts that are changing the traditional definition of marriage against the will of the people. And they fear those courts will continue to do so if they are not stopped.
Opponents of such an amendment argue that the definition of marriage has always been left to the states to decide, and that there is no need for a Constitutional amendment as the courts are unlikely to impose gay marriage on the nation for the foreseeable future. Further, states have always been entrusted to rein in their own activist courts without help from federal authorities.
Q: What is the scope of the Federal Marriage Amendment (FMA) that has been introduced in Congress?
First, it would define marriage as the union of one man and one woman and thereby prevent the courts, state legislatures, or the people themselves from ever defining it any other way. Second, the FMA would prohibit the "legal incidents" of marriage from being given to any unmarried couples or groups. This might be understood by courts to prevent them from enforcing civil union laws or domestic partnership laws, since these marriage alternatives grant some of the rights and benefits (the "legal incidents") of marriage to same-sex couples.
Q: What are the implications of using the Constitution to limit the rights of a group of people?
It would be unprecedented to limit the ability of the democratic process to expand individual rights and include new groups of people in the fabric of American life. It would set a dangerous and corrosive precedent.
Q: The federal Defense of Marriage Act (DOMA) and many similar state laws already prohibit same-sex marriage. Why do some people want to amend the Constitution, given that these laws are on the books?
They want to amend the Constitution because they fear activist state or federal courts could declare these laws to be unconstitutional. No court can overturn a constitutional amendment, but courts can and do overturn statutes. Still, no court has yet held the federal DOMA or any state DOMA unconstitutional.
Q: How likely is it that the Federal Marriage Amendment would be enacted?
It is unlikely that Congress would approve the FMA this year. But if the Republicans pick up between 7 to 10 seats in the November election, the likelihood of passage in the next Congress will be much higher. Then, the amendment must be approved by three-fourths of the states. Historically, amendments that are approved by Congress have a very strong likelihood of being approved by the states. Furthermore, 38 states already have their own DOMA laws, and it would take only those 38 states to approve a constitutional amendment.
Q: What are the arguments for and against amendments to state constitutions to define marriage?
They are very similar to the federal arguments. On one hand, supporters of such amendments want to defend the traditional definition of marriage against what they regard as activist courts. On the other hand, opponents argue that such amendments are unnecessary, as state courts are very unlikely to overturn marriage laws and do not want to write discrimination into their own state constitutions. Q: Is defining marriage a role for state government, federal government, or both?
Historically, states have had sole authority to define marriage. However, in 1996, Congress passed DOMA, which for the first time defined marriage, for federal law purposes, as the union between one man and one woman. DOMA prohibits the recognition of civil unions for purposes of federal law.