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July 2013 Brief: Volume 20, Number 19

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A Renewed Call for a Federal Marriage Amendment

 

by John Hendrickson

 

 

The United States Supreme Court heard arguments dealing with the issue of the constitutionality of the Defense of Marriage Act (DOMA) and California’s Proposition 8, which was a defense of traditional marriage (between one man and one woman) that was approved by the voters, but later was declared unconstitutional. In United States v. Windsor, the Court in a 5-4 decision, struck down the federal DOMA law as unconstitutional, but also ruled that states that prohibit same-sex marriage do not have to recognize gay marriages that have been legalized in other states. In another 5-4 decision, the Court in Hollingsworth v. Perry ruled that the California court decision to overturn Proposition 8 would stand because the Supreme Court does not have jurisdiction.

 

The issue at hand is whether or not same-sex marriage is a protected right under the Constitution. Several states have passed constitutional amendments defining and protecting traditional marriage. Some states, including Iowa and most recently Minnesota, are allowing same-sex couples to marry. The debate over marriage has furthered the cultural divide in our nation, and just as with the Roe v. Wade decision on abortion, the Supreme Court’s decision will have a major impact not only on the future of marriage, but also on the future course of the nation.

 

Matthew Spalding, Vice President of American Studies and Director of the B. Kenneth Simon Center for Principles and Politics at The Heritage Foundation, wrote that the “debate over the legal status of marriage has emerged as a critical national issue, the resolution of which will shape the future of our society and the course of constitutional government in the United States.”[1] Albert Mohler, who serves as President of Southern Baptist Theological Seminary, described the debate over marriage:

 

Taken together, these cases threaten nothing less than the redefinition of the most basic and essential institution of human society — any society. Marriage stands at the center of human culture and life, forming the necessary network of relationships upon which society depends. Every society in human history has found its way to the establishment of marriage as the centering institution of all social order. Its exclusively heterosexual character has been challenged only in very recent years and only in a few nations. Now, this institution that has preserved the context for intimacy, procreation, and the raising of children is threatened with a redefinition that would render the state’s conception of marriage at odds with millennia of human wisdom, putting human flourishing at risk.[2]

 

The debate over the definition of marriage is taking the nation by storm as advocates of same-sex marriage argue that they are being denied the right to freely enter into the covenant of marriage. Defenders of same-sex marriage argue that the Constitution’s Due Process and Equal Protection clauses protect them against traditional marriage laws such as DOMA.[3]

 

John C. Eastman, a Constitutional scholar and lawyer, wrote that “the Equal Protection Clause does not compel recognition of same-sex marriages because same-sex couples are not situated similarly, in relevant respects, to opposite sex couples.”[4] Wayne Grudem, in Politics According to the Bible, quotes Judge Richard Posner, who argued that “nothing in the Constitution or its history suggests a constitutional right” to same-sex marriage.[5]

 

In addition, the legality of same-sex marriage would result in several major constitutional questions. As Albert Mohler noted:

 

A finding that DOMA is unconstitutional would lead immediately to a realignment of laws dealing with marriage at the national level and to an avalanche of litigation in the states. Just as urgently, such a decision would put a host of threats to religious liberty into action, threatening the rights of churches, religious institutions, and citizens who are opposed to same-sex marriage on religious grounds.[6]

 

Other constitutional questions would be brought forward in terms of freedom of association, free speech, and education.[7] In addition the Windsor decision will bring further constitutional questions over equality because it is most certain that states that prohibit same-sex marriage will be challenged for discriminating against same-sex marriages. The current trend seems to be moving in favor of same-sex marriage as more Americans are taking a libertarian stand on the issue, but in the end the future of marriage will have a significant impact on our nation. Patrick J. Buchanan wrote that “a common faith and moral code once held this country together,” but the cultural and even economic debates of today demonstrate the great divide in our nation over these issues.[8] Buchanan noted that as a society America “has lost its moral bearings and is rapidly losing its mind.”[9]

 

The solution to the marriage issue is to adopt a federal marriage amendment which protects traditional marriage. As Judge Robert H. Bork wrote, “the question of homosexual marriage is going to be decided at the national level; either there will be a constitutional right to such marriages, created out of whole cloth by judges, or there will be an amendment to block that development.”[10]

 

Endnotes:
[1] Matthew Spalding, “A Defining Moment for Marriage and Self-Government,” Issue Brief, No. 3871, The Heritage Foundation, Washington, D.C., March 8, 2013, <http://thf_media.s3.amazonaws.com/2013/pdf/ib3871.pdf> accessed on April 8, 2013.
[2] Albert Mohler, “Marriage in the Dock—The Supreme Court Considers Same-Sex Marriage,” AlbertMohler.com, Tuesday, March 26, 2013, <http://www.albertmohler.com/2013/03/26/marriage-in-the-dock-the-supreme-court-considers-same-sex-marriage/> accessed on April 8, 2013.
[3] Doug Kendall and Ilya Shapiro, “The Constitutional Case for Marriage Equality,” Cato Institute, February 28, 2013, <http://www.cato.org/publications/commentary/constitutional-case-marriage-equality> accessed on April 8, 2013.
[4] John C. Eastman, “The Constitutionality of Traditional Marriage,” Legal Memorandum, No. 90, The Heritage Foundation, Washington, D.C., January 25, 2013, <http://www.heritage.org/research/reports/2013/01/the-constitutionality-of-traditional-marriage> accessed on April 8, 2013.
[5] Wayne Grudem, Politics According to the Bible: A Comprehensive Resource for Understanding Modern Political Issues in Light of Scripture, Zondervan, Grand Rapids, Michigan, 2010, p. 229.
[6] Mohler.
[7] Spalding.
[8] Patrick J. Buchanan, “Is America Still a Good Country?” Creators Syndicate, March 29, 2013, <http://www.creators.com/conservative/pat-buchanan/is-america-still-a-good-country-13-03-29.html> accessed on April 8, 2013.
[9] Ibid.
[10] Robert H. Bork, Slouching Towards Gomorrah: Modern Liberalism and American Decline, HarperCollins, New York, 2003, p. 376.

 

John Hendrickson is a Research Analyst with Public Interest Institute, Mount Pleasant, Iowa. Contact him at Public.Interest.Institute@LimitedGovernment.org.

 

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