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?