According to reports this week, the leadership of the United States Senate is currently considering whether to bring to a vote a proposed constitutional amendment to define the nature of marriage. There is widespread agreement that the proposal lacks the necessary votes to pass, suggesting that the vote is primarily intended to make a political issue of the proposed amendment’s subject matter during an election year.
Still, many constituencies remain highly exercised over what they perceive to be the necessity of such an amendment to resolve the matter of single-sex marriage. Curiously, these constituencies seem largely to be the same as those that vehemently opposed the passage of a different constitutional amendment — the Equal Rights Amendment — some thirty years ago. At the time, opponents of the Equal Rights Amendment claimed that use of the constitutional amendment process to address the purposes of the proposed amendment was both unnecessary and unwise
Among the most sophisticated of such arguments were those advanced by Rex Lee, former Solicitor General and BYU law professor, in his book A Lawyer Looks at the Equal Rights Amendment. In his book, Lee articulated not only reasons for concern over the Equal Rights Amendment as promulgated, but over engaging the constitutional amendment process to address such social issues. Many of his observations seem equally applicable to current constitutional amendment proposals.
For example, many of the arguments favoring the current amendment are couched in rhetoric regarding the curtailment of “activist judges” who are imposing their view of marriage on an unwitting and unwilling American populace. But Lee argues that constitutional amendments effectively increase both the opportunity for and the unanticipated consequences of judicial intervention, as the courts interpretively engage the text of the new amendment. He offers detailed studies of the Fourteenth Amendment and other amendments to support this conclusion.
If this and other concerns raised by Lee regarding the amendment process were valid then, are they equally valid now? Are such concerns being overlooked or ignored in the current political press for a constitutional amendment? Or is it possible to articulate some principled distinction between the Equal Rights Amendment and the current marriage amendment, beyond a simple preference for the social goals of one or the other?