Why Marriage Is a Constitutional Matter

The Senate is scheduled to debate and vote on the Marriage Protection Amendment (MPA) next week. While some pro-family organizations like Concerned Women for America would prefer a stronger text than the MPA, there is no disagreement that marriage is worthy of constitutional protection. Congress should begin the amendment process instead of waiting until the court of last resort desecrates the sanctity of marriage by reducing it to state-sanctioned sexual licentiousness.

Senators on both ends of the political spectrum, and some in the elusive, mushy-middle-moderate-centrist school of political expediency, think that the union of one man and one woman in holy matrimony is only worthy of constitutional protection as the last resort. “It should be left to the states,” they tell us, “until a federal court strikes down a state’s marriage law.” Last resorts are no resort if they’re also untimely.

A federal judge has been-there-done-that more than a year ago with Nebraska’s marriage amendment, which was enacted by 70% of the voters. Upon reminding them of that judicial assault on state sovereignty, we’re told “it’s not decisive; wait and see what the appellate court does.” Doubtless, we’ll be told to wait and see if we’re then subjected to a Supreme mugging.

Some call it federalism. Some of us think that true federalists wouldn’t sit idly by while judicial tyrants pummel a sovereign state with three free muggings before beginning the lengthy process of amending the U.S. Constitution.

Tom Paine said, “A thing moderately good is not so good as it ought to be. Moderation in temper is always a virtue, but moderation in principle is always a vice.” Certainly the bedrock of society is more than moderately good. And failing to preserve marriage is less than principled.

Fox News Sunday anchor Chris Wallace recently asked Sen. John McCain (R.-Ariz.) whether he would vote for the federal marriage amendment. McCain expressed preference for the three-mugging rule: 

I will vote against it because I believe very strongly that in a – first of all, on the sanctity of union between man and woman, but I also believe that the states should make these decisions. The states regulate the conditions of marriage, and unless there’s some decisive overruling by the federal courts, then I will continue to believe that the states should decide. We in Arizona should make our decisions about the status of marriage in our state just as the people in Massachusetts and other states should make their decisions.

McCain knows that Congress alone cannot amend the U.S. Constitution. Any amendment passed by two-thirds of Congress needs ratification by three-fourths of the states. The amendment process depends upon and respects state sovereignty. It usually takes several years to complete the process.

McCain has endorsed a proposed amendment to the Arizona Constitution that is more protective of marriage than the federal amendment. Since McCain supports Arizona’s right to regulate marriage, why does he oppose a federal amendment that would provide Arizona and other states with the opportunity to fortify their marriage laws? A federal amendment is the only means to secure the sovereign right of states to define marriage that will withstand usurpation by federal and state judges and acts of Congress and state legislatures.

In the 19th century, Congress was so concerned about preserving the institution of marriage from bigamy, one of the “twin relics of barbarism,” that it enacted statutes that made bigamy a federal felony, denied statehood to federal territories that permitted bigamy, denied public office and jury service to bigamists, disenfranchised and denied the right to vote to anyone who was a bigamist, polygamist or living in unlawful cohabitation with more than one person.

The U.S. Supreme Court rejected a constitutional challenge to a statute for the territory of Utah that conditioned the right of suffrage. In Murphy v. Ramsey (1885), the Court reasoned:

For certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement. 

Some might say that Congress acted with a very heavy hand when it conditioned a territory’s fitness to become a state on its marriage law, and denied those who practiced polygamy a right to participate in any political process by disenfranchising them, not just on the issue of marriage, but on all issues in all elections. As a result, Utah made bigamy and polygamy illegal in 1896 in order to be admitted to the Union.

There is nothing heavy-handed, however, about amending the federal Constitution to protect the institution of marriage. Those in Congress who vote for a federal amendment are facilitating the right of the state legislatures to express their sovereign will by voting on the amendment. The federal territorial statutes effectively eliminated such a choice.

The prescient in 2003 foretold that the Supreme Court’s decision in Lawrence v. Texas would be used by proponents of same-sex marriage and polygamy. That has been validated several times. On May 16, 2006, the Utah Supreme Court upheld the state’s prohibition of bigamy, polygamy and polygamous cohabitation against a challenge under Lawrence. The Utah court split in Utah v. Holm, however, on whether Lawrence reaches beyond consensual sex between same-sex couples in private, leaving the same-sex marriage question for another day.

Congress needs to awaken to the ticking sound of a time bomb that will detonate the institution of marriage. We need a federal amendment to preserve it rather than an untimely one that goes into effect in the midst of rubble.