There is growing momentum for Congress to consider an amendment to the U. S. Constitution that would prevent any state from recognizing same-sex marriage. Tampering with the Constitution in this manner is a bad idea that should be rejected at once.
The framers of the Constitution knew it was not a perfect document when it was written, and so provided a mechanism to amend it over time. In fact, it was the framers themselves who wrote the first 10 amendments, known collectively as the Bill of Rights.
Over our history as a nation, the Constitution has been amended 27 times. These amendments abolished slavery and affirmed voting rights for African Americans and women.
But never before has the Constitution been amended to restrict fundamental civil rights and defy our deeply rooted national commitment to individual liberty. Prohibition — this country's last foray into using the Constitution to define morality — was noted more for how it was breached than how it was observed. And, it was notoriously short-lived.
The so-called "marriage amendment" — proposed by Rep. Marilyn Musgrave, R-Colo., and defining marriage as the union of a man and a woman — upsets our historic balance of power between state and federal governments.
The Constitution created a unique system of government, balancing the freedom of the states to shape their own laws against the power of the federal government. It has ensured that regulation of marriage, divorce and other family law questions would be decided locally rather than nationally.
For example, Washington has permitted interracial marriage since 1868, even though most states at the time barred it. It was nearly a hundred years before the United States Supreme Court, based on fundamental principles of equality, declared those laws unconstitutional. But in the meantime, Washington was free to decide this question locally, based on the views of its own citizens, rather than succumbing either to peer pressure from other states or direct orders from the federal government.
The marriage amendment flies in the face of this ideal. It shifts power to the federal government at the expense of local control. Historically, our nation has benefited from the independence of its states, allowing regional and local solutions to problems instead of insisting on one-size-fits-all approaches. In a nation that is increasingly diverse, this preference for local variation is crucial.
State sovereignty should be tread upon lightly, and only in the name of promoting equality and individual freedom, not in the name of denying those core values.
The alternative of offering "civil unions" as a substitute for marriage is not a solution. It is like promising equality in education through a system of segregated schools.
The hard lessons America learned about racial discrimination are instructive in this context. As the U.S. Supreme Court recognized 50 years ago in Brown v. Board of Education, separate cannot be equal. Just as segregated schools could never provide African-American children with truly equal education, civil unions cannot provide gay and lesbian couples the full benefits of marriage.
Marriage brings with it more than a thousand federal benefits — from military next-of-kin notification to Social Security survivor's benefits — in addition to hundreds conferred by state law. Civil union cannot match this; although couples civilly united may receive state benefits, they are denied all the federal benefits and cannot contest their exclusion as discriminatory.
More importantly, marriage is a fundamental social institution, with a long history and a unique status. Even if civil union could match the legal status of marriage, it cannot match the social meaning. Long before Brown, the Supreme Court acknowledged the value of being accepted as part of a recognized institution with an established history and reputation, rather than shunted to a specially created facsimile. Given the choice, how many heterosexuals would choose civil union over marriage?
The marriage amendment abandons at least three core principles of our nation — individual liberty, equality and state sovereignty. And, it does so in an ill-conceived effort to "protect" traditional marriage by defining it.
Marriage will not be undermined by a few states, or all of them for that matter, granting all Americans the right to enjoy this fundamental social institution. That argument was tried and found wanting in the context of interracial marriage; it is a tired argument, wrong then and wrong now.
Our traditional values of liberty, equality and state sovereignty would be undermined by using the U.S. Constitution as a dictionary for defining marriage. Our nation's Constitution is not for such trivial uses as that.
Julie Shapiro and Kellye Testy are associate professors in the Seattle University School of Law.
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