Defining Marriage in the Constitution
Commentary by Steve Yuhas
February 9, 2004

The Constitution of the United States is not an imperfect document, despite its brevity it is quite clear in its intentions, so clear in fact that since 1791 it has only been amended 17 times. The time has come, though, for Congress to accept its responsibility as the most powerful branch of government to reign in judicial activism and to finally put to rest the notion that the institution of marriage should be defined in any way other than a union between one man and one woman.

Massachusetts Supreme Judicial Court has ordered that the legislature of the commonwealth begin to recognize gay marriage beginning in May. The state legislature will convene a constitutional convention next week in order to codify in law the wishes of the majority of the people of Massachusetts that seek to return marriage to its proper place in society as more than a tug of war between gay activists and the mainstream population. Amending the constitution in Massachusetts seems all but inevitable, but the time it takes will certainly cause a crisis across the nation as the Supreme Judicial Court will not issue a stay to allow the people to vote on the amendment, thus allowing, at least temporarily, gays to marry for the first time in our national history.

Gay activists and organizations applauded the decision and many are preparing to send hundreds of couples to Massachusetts to legally marry only to return to the remaining 49 states to challenge marriage laws across the country. Starting in May gay couples will begin to flood into Massachusetts to receive a marriage certificate that they will argue is valid in all 50 states due to the full faith and credit clause of the U.S. Constitution. Regardless of the fact that the vast majority of states have adopted definitions of marriage that define it in the religious and traditional way (read: man and woman) gay activists will insist that any limitations on the definition of marriage are illegal and unconstitutional.

As the branch of government closest to the wishes of the people the Congress has a fundamental responsibility to use its constitutional authority to remove from the equation jurists and judges who legislate from the bench instead of simply executing their fundamental authority of interpreting the constitution and the laws of the land. Amending the Constitution is a serious and thoughtful endeavor that should never be entered into lightly, but it is necessary in order to avoid four judges in Massachusetts from redefining marriage for the entirety of the nation.

Gays will argue that marriage is not a federal issue and that it should be left up to each individual state whether or not to recognize gay marriage, but those same activists will petition friendly liberal courts as soon as a gay “married” couple returns from Boston to seek to overturn those same state laws using the United States Constitution. The Human Rights Campaign (HRC), an extremist gay organization, goes so far as to employ the sympathies of September 11th to support their position that an amendment to the U.S. Constitution is unnecessary, “In a post-Sept. 11 world, it is very telling and shameful that the far-right has nothing better to focus their energies on than introducing a gratuitous anti-gay constitutional amendment.”

Of course, they will attempt to paint the amendment as anti-gay and discriminatory rather than an amendment necessary to preclude their own activists and sympathetic judges from changing the most fundamental societal union ever known to mankind. Activists will call supporters of the amendment “homophobic” and “bigots” and they will employ the same tactics they always do when someone opposes their point of view. The television news programs will be full of gay couples who use the talking points of the HRC, they’ll shed a few tears holding hands talking about the radical right and the religious conservatives who are causing them so much angst all the while refusing to acknowledge that almost 70% of the nation opposes gay marriage – far more people than the religious right could ever muster. The campaign for the amendment will be hard fought, but in the end the process of amending the Constitution will meet with almost certain approval.

The problem that gays face with respect to marriage is that they don’t place as much stock in the importance of the union as most people do. Marriage to the gay community is nothing more than a piece of paper – something that is used to equally divide property and to allow for visitation in the hospital. Never do you hear gay people say they want to be married in order to provide for a social foundation for the nation or to provide a stable environment for children (mostly because gays are biologically inferior when it comes to bearing children). The reasons that gays give for wanting to be married are selfish and self serving while their heterosexual counterparts see marriage as a covenant between two people and God – gays look at the union between them and nobody else.

Marriage is and has been a religious institution and the notion that it would be illegal for a Catholic priest or a Jewish rabbi to refuse to acknowledge a gay marriage is a striking reminder of the slippery slope we will head down should we not define marriage once and for all in the U.S. Constitution. After all, if marriage is simply a union of consenting adults who desire to make a state sanctioned commitment to each other – could not marriage apply to multiple partners? Marriage is defined in many states as being between one man and one woman because the state recognizes the superiority of that particular union compared to all others, if gays believe that their union is equally superior would discrimination against other types of consensual unions be equally unconstitutional? These questions are often rebuffed by gay activists as absurd, but one has to wonder if it is unconstitutional to tell two men that they cannot marry how can it be constitutional to tell three men or two men and a woman that they cannot marry as well?

President Bush indicated during the State of the Union as well as in a statement following the issuing of the Massachusetts Supreme Judicial Court decision that he would be willing to support an amendment to finally end the state by state degradation of marriage. Bush said, “Today's ruling of the Massachusetts Supreme Judicial Court is deeply troubling. Marriage is a sacred institution between a man and a woman. If activist judges insist on re-defining marriage by court order, the only alternative will be the constitutional process. We must do what is legally necessary to defend the sanctity of marriage.”

The President is absolutely right and it is now up to Congress to act or for two thirds of the states to call for a Constitutional Convention to put this matter behind us and to end the endless litigation that will inevitably stream from Harvard Square beginning this spring.