Constitutional Turnabout

June 25, 2004 | 34 comments
By

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?

34 Responses to Constitutional Turnabout

  1. Dan Burk on June 25, 2004 at 10:38 pm

    And, again, since I am on the road, I apologize if I’m not always quick or even available to respond.

  2. lyle on June 25, 2004 at 10:59 pm

    Dan: Good point, good question…overblown comparison. _some_ not most of the anti- constituencies overlap. The LDS Church & The S. Baptist Convention however both opposed ERA & support the Marriage Amendment. Or…if I’m extending on the LDS support…read the tea leaves & how the Church has fought SSM in the states. The inference is worthy of a Homer-esque “Duh”.

  3. Jordan Fowles on June 25, 2004 at 11:10 pm

    I think Lee’s arguments are still valid today.

    A marriage amendment would not curtail “activist judges”, but would give them a foothold to define what a proper family looks like, and who knows what else. It is a scary proposition to allow the federal government into the business of defining the family one way or another.

    Looking down the road, with a marriage amendment foothold opening the door for federal judges to tinker with the family, who’s to say that the judges would not run with that? Who’s to say that they would not then, reading the anti-establishment clause along with the new marriage amendment, proceed to ban all temple marriages, or at least make them legally meaningless (so that couples would have the same situation as exists in places like Germany, where they have to be both civilly married and sealed in the temple in separate ceremonies).

    Once the federal courts are in the business of defining families through constitutional interpretation, what’s to stop them, in the interest of population control, from limiting the amount of children in each family through some judicial slight of hand?

    I know that the last example seems absurd, but I think that considering consequences such as these certainly highlight why Lee’s concerns re: the ERA are very relevant to the current movement for a marriage amendment.

  4. lyle on June 25, 2004 at 11:14 pm

    Jordan: Please try to flesh that out. Exactly how is an activist judge going to define “what a proper family looks like” when the literal text of the Amendment & all of the legislative history supporting it, will _clearly_ & _explicity_ state that it is: 1 man, 1 woman. end of story? I don’t see that as much of a foothold for penumbra’s…

    Really. So…how are the judge’s going to “get into the biz of defining families”? The Amdt prevents them from doing that. Since they are _already_ doing it…somethat that _prohibits_ their current actions & _defines_ away any possible interpretational space doesn’t really threaten me…

  5. Jason on June 25, 2004 at 11:18 pm

    Yeah. Just let a grandfather marry his grandsons, you old fashioned boobs. ‘keep yer doctern outta thar covernants.’

  6. Jordan Fowles on June 25, 2004 at 11:23 pm

    Well, if everyone on the court were always a faithful textualist like Scalia, then you are right, there would be no worry.

    Rather than fleshing it out further, let me ask this. Would such an amendment really even work, if a large enough element of the country is bent on allowing gay marriage?

    What is a man, and what is a woman under this amendment? Would it still ban marriages between man + transsexual (“woman”)? What if the court decided that gay men somehow fit under the mantra of “women”? What if the states somehow arranged a way for a person’s gay partner to legally renounce his/her status as man/woman and be declared legally the other, for purposes of meeting the constitutional requirement?

    The amendment sounds simple, but would it really truly prevent judicial and legislative gymnastics around it?

  7. lyle on June 25, 2004 at 11:32 pm

    Jordan…good points. All of which highlight the true problem: judges that think they are elected legislators & not adjudicators. If the gymastics you describe occur, then my guess is that it would make enough folks angry, about an issue they care about, that Article III would be amended (as has been proposed) to deal with this type of activist (insert favorite swear word here).

    Also…folks could try, personally I think they would fail; OR trigger another anti-activist amendment above, but…the greatest benefit:

    at least my children & yours won’t have to deal with it while they are growing up…even if Soddom does come calling when our kids are getting married & worrying about our grandkids.

    second great benefit: hopefully the strident sinners clue in that America doesn’t want that type of (insert ______ here) & they choose to vote with their feet into another country where they can be as gay as they want.

  8. Jordan Fowles on June 25, 2004 at 11:46 pm

    In my stake, we have been asked to support this amendment. The Stake Presidency pleaded with us to do what we could to get it passed.

    The legal side of me is very skeptical 1) that such an amendment would even curb the problem; and 2) that such an amendment won’t someday be turned against some of the church’s core beliefs about the family.

    Yet even with these caveats, perhaps the church leadership sees something which I do not. And I do feel like I should do everything I can to prevent society creating a mockery out of the sacred institution of marriage, even if I don’t think a constitutional amendment is a wise choice (for reasons similar to Lee’s reasons). If the amendment is the only remaining way of doing this, and the leaders of the church have asked me to support it, then I suppose I would overlook what I see as the caveats and raise my voice in support of such a notion.

    But it still scares me, and I still think that a constitutional amendment addressing this social/family problem may be an unwise way to proceed.

  9. Jeremy on June 26, 2004 at 12:10 am

    Lyle,

    I don’t think your inference is as Duh-worthy as you say it is. The church has made its position so absolutely clear in particular states’ cases, one wonders why it hasn’t been so outspoken on the amendment issue specifically. It wouldn’t surprise me all that much if the church did make an official statement in favor of the amendment in the coming weeks or months, but until it does, I can only assume that the silence is deliberate–or at least deliberative.

    I haven’t read Lee’s book about the ERA, but Dan’s application of it to the current situation points up the problem that concerns me most. It seems to me that the proposed Marriage Amendment’s ultimate purpose is to make a statement that we as a society do not recognize same-sex relationships as valid social entities–in essense, it is an effort to anomalize them. The constitution in this context is thought of not as a guide for or limit to legislation, but a tool for dictating social mores. Frankly, I don’t think this will dissuade many homosexuals from forming long-term, committed relationships, if they’ve a mind to, it will simply mean that those relationships won’t be recognized legally. The possibility remains, however, that they will increasingly be recognized socially–that people will treat the lesbian or gay couple down the street as they would any married couple, and that the more people encounter such couples on a personal level, the more unremarkable such a relationship will seem.

    Let’s set aside for a moment the question of whether or not this is a good thing. I’m interested simply in considering what will happen if 1) the Amendment is ratified, if not now than further down the road, and 2) homosexuality becomes more widely accepted as a lifestyle (among a generation of television viewers raised on Will and Grace and Queer Eye). If society at large increasingly recognizes same-sex unions as valid _socially_ and in doing so refuses to take its cues about _social_ normativity from the Constitution, it just means that the Constitution becomes distanced from the de facto state of affairs in the country, and thus becomes less relevant. How long could such a dissonance between social reality and the Constitution last before the Amendment would get bagged? Or, to put it another way, do proponents of the Amendment think it will decrease the number of long-term homosexual unions, and/or reverse the trend of increased social acceptance of such relationships?

  10. Heather Oman on June 26, 2004 at 12:11 am

    “Would it still ban marriages between man + transsexual (“woman”)? What if the court decided that gay men somehow fit under the mantra of “women”? What if the states somehow arranged a way for a person’s gay partner to legally renounce his/her status as man/woman and be declared legally the other, for purposes of meeting the constitutional requirement?”

    I am not a lawyer, but I do know that there are already definitions in place about what constitutes a “man” and a “woman”. Being required to work with transsexuals as a graduate student doing speech therapy, we learned a little bit about what people have to do to meet such a legal definition. It’s not pretty. So such gymnastics, as lyle put it, actually are not that far fetched.

  11. Jordan Fowles on June 26, 2004 at 12:22 am

    Heather,

    I am not sure if you mean to address me or Lyle. I mentioned the “gymnastics.” And I do not think they are too far-fetched.

  12. Heather Oman on June 26, 2004 at 12:40 am

    Jordan:

    Sorry I wasn’t more clear. I actually skimmed over your last line, and missed that you initially used the word gymnastics. I was trying to point out that your “what ifs” scenarios are already somewhat in the works, and they are indeed NOT too far-fetched. On the contrary, my understanding is that people are already engaging in bizarre (not to mention painful) activities to meet existing legal definitions. A constitutional amendment dealing with same sex marriage would therefore have to be very, very specific, and like you imply, that may be impossible.

  13. Eric James Stone on June 26, 2004 at 2:47 am

    Guess what? The Federal government is already in the business of defining what a family is. Don’t believe me? Try using Married, Filing Jointly for a husband and two wives the next time you file your taxes.

    A Federal Marriage Amendment will not give liberal judges an excuse to twist the Constitution to fit their vision of the family — they are quite able to do that now.

    Someone brought up the specter that the FMA could eventually lead to temple marriages no longer being recognized as valid. Spinning scenarios is a game two can play at, though.

    Assume that we do not pass the FMA. Homogamy becomes legal throughout the U.S. Anti-discrimination laws require anyone who performs marriages to perform them for any couple that can be legally married. Since the Church refuses to perform same-sex marriages, the Church’s power to perform any marriages is taken away.

    Now, which scenario is more likely to result in the Church’s right to perform marriages being taken away? I’ll leave that as an exercise to the reader.

  14. Geoff Matthews on June 26, 2004 at 3:01 am

    How many rulings by the Supreme Court get over-turned? It happens, but rarely.
    If the FMA really is such a disaster, it’ll be overturned, just as prohibition was (sans organized crime). But if SSM is hoisted on the US by judges, how is that going to be countered?

  15. Catherine on June 26, 2004 at 3:50 am

    If I’m understanding the ERA correctly (it was before my time), both the ERA and same-sex marriage laws/decisions pose basically the same problem for LDS leaders – they make it so you can’t use gender as a valid reason to treat two otherwise-equally-situated people differently. LDS doctrine is that our gender is an essential characteristic of our eternal identity, and Church doctrine and practice frequently involves differentiating roles, responsibilities and authorities by gender. So I see no inherent conflict in its opposing the ERA and supporting the FAM – both actions by the Church work to LIMIT legal encroachment on practicing gender-based differentiation in privileges given and duties imposed.
    Some would perjoratively label such differentiation as awful-bad-evil “discrimination”, but some sorts of differentation must be allowed under law to reflect the reality that men and women are, by and large, actually different creatures. The devil is in working out the details of what differentation should be allowed, something at which communities of voters and legislatures are best since they respond fastest to “the voice of the people”. The FAM would not prevent civil partnerships being instituted by any state, complete with all benefits already given by that state to its married couples. It would only prevent the legal concept of “marriage” being redefined by any one state, which because of the Full Faith and Credit clause, would affect every other part of the Union under the Constitution as it now stands. (Note: DOMA, though an important political statement at the time, can’t stand up to the Full Faith and Credit Clause. You marry your cousin in Montana, and Utah has to treat you like you’re married. No reason for a Massachusetts marriage to be treated any differently under the U.S. Constitution…unless you have pass a FAM.)

  16. Catherine on June 26, 2004 at 3:54 am

    I mean FMA, not FAM. Sorry.

  17. Dan Burk on June 26, 2004 at 6:47 am

    Just popping in during another layover.

    Jordan Fowles — I become concerned when I hear about Stake Presidencies encouraging members to support particular legislative initiatives, first because members may in good consicence oppose particular legislative language even if they support the intended outcome. It is quite possible to support the Church position on SSM while opposing the particular form of the current amendment. For example, Gordon Smith — the Senator, not the blogger — has gone on record as having reservations about the language of the proposed amendment. It is also possible to have a principled objection to this approach as a matter of federalism, believing that the resolution is better left to the states.

    I also worry that most Church leaders are political amateurs, and have poor judgment at gauging the actual effects of legislative proposals. When I lived in New Jersey, our stake asked us to support legislation on SSM, which I believe, had it passed, would have allowed the New Jersey Supreme Court to get where the Massachusetts Supreme Court now is, only about five years earlier. The stake leadership had in my judgment no good sense of how the NJ state constitution and the caselaw would have interacted with the proposed legislation. Fortunately, the proposal didn’t go anywhere.

    Lyle — Penumbras are inherent in the nature of language. I tend to think that Rex Lee raised an important point on this. Think about some of the bizarre results we have gotten regarding the meaning of “due process” and “equal protection” –terminology which the framers of the civil war amendments may have thought was quite clear. As Heather and Jordan suggest, it is quite possible to get equally interesting results interpreting “man” and “woman” and “marriage.” If that occurs and we don’t like the result, it is extremely difficult to re-amend the constitution. Amending something at the level of legislation is more feasible — a reason not to enshrine the adjustment du jour at the constitutional level.

  18. Kaimi on June 26, 2004 at 9:22 am

    Eric,

    Anyone can spin “what if” horror stories. What if we pass the FMA, and it splinters our coalition with more liberal countries, and the war on terror becomes harder because we no longer have bases overseas? What if aliens from Mars invade? What if the Greeks were right, Zeus exists, and he decides to start tossing thunderbolts?

    Your scenario seems slightly more realistic than those.

    The right to free exercise, in the Constitution, almost certainly prevents your parade-of-horrors. We’re not talking about enshrining gay marriage into the Constitution, we’re talking about whether or not to allow it to be decided by legislatures and courts, most likely (as in Massachusetts) on a state-by-state basis.

    And civil rights laws have broad religious carve-outs. You should know this.

    It’s been 40 years since the Civil Rights Act, and inter-racial marriage is now widely accepted by society. Yet racially motivated churches can and do still prohibit interracial marriage.

  19. lyle on June 26, 2004 at 9:56 am

    Dan: Fortunately, the proposal didn’t go anywhere.
    Lyle: Yup, so the democratic process stepped in & passed a civil union/benefits bill. Is it so hard to ask that we try to pass our own laws instead of letting the other side do it via legislation & _activist_ judges?

    Eric: Feel gored yet? Funny, isn’t it, how strange tales of she-males & male-femes being called male or female (even if it does happen in speach therapy) are not “What if” horror stories, eh?

    Kaimi: Yup…and those that oppose broad political and/or civil rights carveouts for SSM/gays are now starting to be fired & lose their jobs. Of course, this need not concern you…as you will still be able to provide for your family when you sign such an infringement on your constitutional rights. Eric & others however, might have problems & their families starve. I’d prefer enshrinement & a familiar battleground in the Courts to just giving up…

    Jordan/All: Y’all have still & consistently, refused to address my question of how activist judges are going “to get started” when the amendment would leave little, to no, room for such maneuvering. If SCOTUS is smart enough to turn down RFRA in Boerne as a flagrant end-run around the Court’s constitutional authority, then SCOTUS is smart enough, & lower courts too (if they aren’t full of liberal activists) to strike down state laws & state judges & lower federal judges making an “end-run” around a Constitutional Amendment. See: History of Jim Crow laws. Which side won? You may now support the FMA in good conscience, esp. since your Stake President asked you to.

    re: Social mores changing. The solution is more missionary work, less TV & not bashing quasi-conservative bloggers. ;)

  20. Kevin Barney on June 26, 2004 at 10:17 am

    I read the Lee book when it first came out, and found it persuasive. At the time, largely as a result of Lee’s arguments, I was against the ERA. (I was also quite young, so I cannot guarantee I would be against it today if this were when the topic arose.)

    But I learned my lesson from Lee well, and what is good for the goose is good for the gander. So I agree with Dan’s implication that Lee’s argument also applies to a SSM amendment, and I would similarly disfavor such an amendment.

    (Although I would disfavor the amendment on substantive grounds anyway, so for me the Lee argument is unnecessary here. But still, for those who like the substance of it, I think Dan raises a good point about Lee’s anti-ERA arguments.)

  21. lyle on June 26, 2004 at 10:32 am

    Also: Since the LDS 2 parent PoF Family is the “basic unit” of society; then “The family is the ground floor. It is the foundation underneath all of society, all of civilization…If you weaken it, if you tamper with it, you necessarily threaten the whole superstructure.”

    Frankly…if we have already hit rock bottom, i.e. the foundation, of our civilization…then mayhap you might wish to fight for it? Or is there something so abominable about trying to preserve traditional 2 parent families that allows you a Prophet-General Mormon-esque opt out?

  22. Adam Greenwood on June 26, 2004 at 11:15 am

    I think these reasons for opposing the FMA are inadequate.

    As for ‘getting Federal Courts into the marriage business': They already are and will be. SSM is going to be in the federal courts for a long time now. Better that willful judges have to struggle with a democratic amendment inimical to their project rather than write the ‘Constitution’ from a blank slate.

    As for any new amendment empowering judges to be more willful:
    You write as if judicial activism had no trajectory. But it does. Willful judges do not simply take every constitutional provision and expand its meaning. Anyone ever heard of the Contract Clause? Judges, lawyers, and law professors are part and parcel of the overwhelming socially liberal elite in this country and their decisions will expand the Constitution in that direction. The ERA, which was a project of that same socially liberal milieu, thus offered much more scope for the rule of judges than the Marriage Amendment will. Judges will spend their time trying to limit the amendment, not expand it.
    And the Marriage Amendment is an *attack* on judicial activism. It will be the most important statement in decades that important questions are not to be decided in the courts. It will rebuke. It will hardly make the problem of judge-rule worse. It could make it better.

    Look, I acknowledge the sincerity of these arguments, but I question their importance. They seem more like a handy way for people who are *already in favor of legalizing SSM* to baffle or distract their opponents, maybe peel off a few of them at the edges, while keeping attention away from the underlying issue of whether or not this country should embrace and approve of homosexual relationships.

  23. Jeff Lindsay on June 26, 2004 at 2:12 pm

    Even more disconcerting that calls for an amendment are the calls for a Consitutional Convention to deal with gay marriage. Once a convention is called, the whole constitution could be rewritten. If we had a lot of people like George Washington among the movers and shakers of the country, the result might be an improved document, but with the kind of people in power these days, reworking the Constitution is the last thing we need.

    The Constitution remains an inspired document and a banner of liberty. It’s not broken. The problem of radical judges is easily solved by applying the checks and balances already built into the Constitution. Congress has the power to limit the scope of their activities, or they can be impeached.

    I’m very disappointed with Mitch Romney and others who take the doom and gloom view that the only hope is to modify the Constitution. Baloney!

  24. lyle on June 26, 2004 at 2:41 pm

    Jeff has a great point.

    NO constitutional convention.
    NO way.

    I want an amendment (such as we have done for 200 years); not a convention.

    :)

  25. Eric James Stone on June 26, 2004 at 4:59 pm

    Kaimi,

    > Anyone can spin “what if” horror stories.

    Yes, that was my point. That’s why I said:

    > Spinning scenarios is a game two can play at,
    > though.

    My whole point is that, if you’re going to make scenarios that involve judges running amuck and trampling all over our religious rights, the judges won’t need the FMA to do so.

  26. Dan Burk on June 26, 2004 at 5:36 pm

    “Look, I acknowledge the sincerity of these arguments, but I question their importance. They seem more like a handy way for people who are *already in favor of legalizing SSM* to baffle or distract their opponents, maybe peel off a few of them at the edges, while keeping attention away from the underlying issue of whether or not this country should embrace and approve of homosexual relationships.”

    Look, I acknowledge the sincerity of these arguments, but I question their importance. They seem more like a handy way for people who are *already against the equality of women* to baffle or distract their opponents, maybe peel off a few of them at the edges, while keeping attention away from the underlying issue of whether or not this country should embrace and approve of equal rights for women.

    Sound familiar?

  27. Adam Greenwood on June 26, 2004 at 6:33 pm

    Sure does sound familiar. Sounds like my own statement, modified heedless of all context. For such context, I refer you back to the arguments that preceded my statement.

    If anyone chooses to believe that the Federal Marriage Amendment is a vehicle for libertine judicial activism they may continue to do so for all of me.

  28. lyle on June 26, 2004 at 7:06 pm

    You’re right Adam. If libertine judges can bend the FMA, or bend what we have now…we should just give up…as Dan’s post title (which I haven’t read as of yet) states. I mean…if they are smart enough to manipulate the right into passing constitutional amendments that they know how to subvert…then maybe I should just pull an ayn rand & refuse to participate in anything? Of course…then I’ll have Pres. Faust condemning me for not being civically involved. argh…what a Faustian Catch-22.

  29. Dan Burk on June 27, 2004 at 7:47 am

    Adam — You’re right about context. You have pretty well convinced me that there is no principled difference between those statements, 30 years apart, except for a naked political preference for one outcome or the other.

    It’s precisely the “I don’t care how we do it as long as we stop those homos!” attitude displayed by many of this amendment’s supporters that concerns me.

  30. Nate on June 27, 2004 at 9:43 pm

    My answer to Dan’s original question: The fourteenth amendment clearly expended the power of federal judges. On the other hand, the sixteenth and seventeenth amendments don’t seem to have provided the basis for the activist free for all. The language of the ERA was fairly broad, much like the fourteenth amendment, so perhaps there was some force to Lee’s argument. Whether the same thing applies to the FMA seems to me to turn largely on the text of the amendment. For my money, I texts of the various FMAs that I have seen look an awful lot more like the sixteenth amendment than the fourteenth.

    Hence, it seems to me that it is possible to draw distinctions that don’t turn on naked political preferences.

  31. Adam Greenwood on June 28, 2004 at 9:21 am

    In addition to Nate’s arguments, I offer a couple of distinctions in my original post that you still haven’t responded to, Dan B. You oughtn’t to assert that there is no principled distinction without at least trying to explain why the distinctions I make aren’t principled.

  32. Grasshopper on June 30, 2004 at 4:14 pm

    Some of the comments in this thread have anticipated that if gay marriage becomes legal nationally, the Church might be deprived of its power to marry. I don’t see that this is such a terrible thing. Perhaps we should think of legal marriage and Church (temple) marriage as distinct (though perhaps related) things.

  33. Eric James Stone on July 1, 2004 at 2:01 am

    In fact, Grasshopper, that’s the way things are in many countries, and though it causes some inconveniences, you are correct that it is not an insurmountable problem.

  34. Kingsley on July 1, 2004 at 2:14 am

    It would certainly solve the problem of non-member parents not being able to attend their children’s weddings. I’ve never seen that particular situation smoothed over successfully–always the parents are heartbroken, often they nurse a grudge.