If there is anything which it is the duty of
the whole people to never entrust to any hands but their own,
that thing is the preservation and perpetuity, of their own
liberties, and institutions.
— Abraham Lincoln, Speech at Peoria, Illinois, October 16,
1854.
The recent decision of a federal judge in San Francisco
that California’s “Proposition 8” violates the U.S.
Constitution’s equal protection and due process provisions is
just the latest example of the reign of judges over America. The
fourteen words at issue stated simply: “Only marriage
between a man and a woman is valid or recognized in California.”
This sentiment was supported by a clear majority of the
citizens of California in a full and fair election.
Unfortunately, many unelected judges have grown accustomed to
imposing their personal policy preferences, the will of the
people notwithstanding.
Certainly, the decision will prompt much debate about the
nature of marriage. Many will likely again advocate amending the
Constitution to permanently fix the definition of marriage as
consisting “only of the union of a man and a woman,” as one prior
proposed amendment read. While I support such an amendment as a
valid means to address the issue, I believe there is something
far greater at stake that such an amendment would not address —
our very capacity to govern ourselves.
In recent decades, Americans have tolerated an increasingly
arrogant judicial branch, and allowed elitist judges to impose on
society their own personal values in the name of the
Constitution. On everything from abortion to marriage,
environmental policy to illegal immigration, our courts have
intervened (and legislated) to an extent never contemplated by
our Founders, or their Constitution.
As a result, the average citizen today not only feels, but
in reality is quite removed from the political process.
It seems many citizens have become, in Tocqueville’s prescient
words, “nothing better than a flock of timid and industrious
animals, of which the government is the shepherd.” Rather than
determine for themselves such fundamental issues as abortion and
same-sex marriage, many seem resigned or even content to having
such momentous public policy decisions made by judges — for whom
they do not vote and against whom they have no recourse.
This judicial usurpation of the legislative function poses
a far greater threat to the future of our nation than does
same-sex marriage. Even those who disapprove of same-sex marriage
could tolerate its presence, so long as they had the opportunity
to be heard on the matter. We must realize that it doesn’t matter
whether judges deciding these fundamental issues get them “right”
or “wrong,” the real problem is that they have the power to
decide at all. To address these issues, I hereby propose the
following amendment to the Constitution of the United
States:
Section 1 Marriage in each
of the individual states shall be defined by the elected
legislature of that state, or by the people thereof, except
that marriage shall not be defined to include more or less than
two persons. A union between one man and one woman, otherwise
valid under state law, shall be recognized as a marriage by all
states, territories and possessions of the United
States.
Section
2 Neither the Full
Faith and Credit Clause nor any other provision of this
Constitution, or any state constitution, or federal or state
law, shall be construed to compel any state, territory or
possession of the United States to recognize any marriage, or
to confer any benefits, rights, privileges or immunities on any
persons married in any other state, territory, possession or
foreign country, except a union between one man and one
woman.
While on its face it deals only with marriage, in its
substance this amendment accomplishes much more — indeed, it
serves as a stark reminder, not only to the judiciary, but to the
people that, as Ronald Reagan stated in his First Inaugural
address, “We are a nation that has a government — not the other
way around.”
Those who support traditional marriage should find plenty
to like in this proposal, as it emphatically reaffirms that
marriage is an issue for the people to decide, either directly or
through their elected representatives. In making clear that it is
the people who hold the ultimate power to decide this fundamental
issue, the amendment will have other salutary effects. First and
foremost, it will provide an incentive to become active and
participate in the political process on a state and local level.
Citizens will once again have a stake and voice in their
government, and control over their fundamental institutions will
be in their hands.
Furthermore, inasmuch as the proposal avoids setting the
definition of marriage for the entire country, it can also be
seen as a compromise. By promoting this amendment, the supporters
of traditional marriage cannot be cast as imposing their view on
the rest of America. Instead, the amendment merely takes the
rather unremarkable approach of affirming that whatever else
marriage is, it must include the union of a man and a woman.
Opposition to any proposal to let the people decide this question
would place advocates of same-sex marriage in an awkward
position, as they would rightly be viewed as seeking judicially
to impose their position on the entire country, the precise thing
for which they have condemned those who oppose their
efforts.
Indeed, if the people of a state support it, the amendment
does not forbid same-sex marriage. This experimentation on a
state-by-state basis may have its own benefits. For example, if
the people of say, Massachusetts or California decide that they
want same-sex marriage, they can have it — and the citizens of
the other 48 states can witness the results, draw conclusions,
and make their decisions for their own state accordingly. In
addition, if a state disfavors same-sex marriage it cannot be
compelled to recognize such a union performed in another state.
In this regard, the amendment restores some degree of state
sovereignty and principles of federalism, and allows citizens who
either strongly oppose or support same-sex marriage to vote with
their feet, and move to a state where their view is more widely
accepted.
Finally, the proposal also limits future debate by
restricting the framework within which states have authority to
define marriage, by mandating that marriage consist only of two
people. This rules out polygamy and group marriages, and will
prevent any “slippery-slope” from taking affect. The amendment
also mandates that a one man, one woman marriage is valid in all
fifty states, thereby prohibiting any state from disallowing or
disfavoring traditional marriage.
Certainly, this proposal is not perfect. However, it does
represent a fair compromise, and is consistent with our
once-proud tradition of self-government. Moreover, it allows for
both sides to achieve victory to the extent that they can
convince their fellow citizens that their point of view is
better, something not possible in the judicial arena. It also
allows for incremental change, encourages debate, fosters civic
responsibility and participation, promotes an informed and active
citizenry, and empowers those closest to and most affected by the
issue to determine for themselves which path to take, and to
change course if necessary. And isn’t that what self-government
is all about?
