Sunday, May 15, 2005

Marriage Protection Amendment

Up till now I have discussed Biblical issues with which I have some familiarity. I know less about the constitutional issues around this issue -- but every voting adult should have an opinion on President Bush's proposed constitutional amendment defining marriage as a union exclusively between a man and woman. I believe that such an amendment would be unconstitutional.

No such amendment could define marriage according to a biblical or religious morality, because the Constitution cannot be made to invoke religion without breaching the disestablishment clause of the First Amendment, which reads in full, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

If marriage is going to be defined without regard to religion (a questionable task), there are still more Constitutional issues. Any amendment to define marriage would be unconstitutional even apart from the First Amendment.

The Constitution says nothing specifically about marriage. But the last amendment constituting what we call our Bill of Rights reads as follows:

Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

An amendment defining marriage would presumably not leave the matter to be defined by states, for in that case some states at least would allow gay marriage, and the United States would be seen as a country which permitted gay marriages. And I presume there would be problems for any country in which a married couple can move to another state and no longer be regarded as married under that state's law, but still somehow married under federal law (for instance where taxes were concerned) because their marriage certificate had been granted in their original state of residence. No, an amendment concerning marriage, like the amendments concerning slavery, voting, suffrage, and Prohibition, would seek to grant the Federal government the power to legislate a national law.

The power to legally define marriage is not currently delegated to the United States by the Constitution, and it is not prohibited by the Constitution to the states. According to the Tenth Amendment, then, that power should be retained by the States, or the people. The states currently define marriage laws, such as the required age of the partners, the number of witnesses needed, sufficient causes for divorce, etc. I am not aware of any federal laws regulating marriage, except those that regulate taxes for those who happen already to be married or unmarried. For the federal government to begin to define marriage would be a breach of the Tenth Amendment.

It is true that the 21st Amendment repealed the 18th Amendment (Prohibition); and that certain sections of the original body of the Constitution, notably those concerning slavery, were changed by later amendments. But these were all passages about specific issues; the Tenth Amendment cannot be repealed or violated, since it's a general principle of the Constitution.

If an amendment were passed in such a way as to provide for the protection of rights retained by heterosexuals, the following amendment would come into play:

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

And what are these rights? The Fifth Amendment states that no person shall be "deprived of life, liberty, or property, without due process of law". This does not relate to marriage per se, but Section 1 of the 14th Amendment, passed in 1868, repeats this line and adds something to it:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Equal protection where it comes to privileges, immunities, life, liberty, and property. The body of the Constitution had said in Article IV, Section 2, that "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states" -- but there the context was immunity for those lawbreakers fleeing law enforcement. The 14th Amendment links "privileges and immunities" with the Fifth Amendment's rights to "life, liberty, or property," and says that all these things are to be provided for with equal protection. Privileges based on marriage, if they are covered at all by the Constitution, are covered here; it would therefore be unconstitutional to provide privileges, even the mere recognition of married status quite apart from specific benefits, to certain people without providing it to others who retain equal protection of their privileges.

The 15th Amendment prohibits discrimination in voting rights based upon race or color; the 19th Amendment prohibits voting discrimination based upon gender. This last amendment is key to the debate on sexual orientation, for it sets a precedent upon which the national government may not discriminate due to sexuality, seen as something deserving private autonomy and protection.

The 15th and 19th amendments, then, do not impinge directly upon marriage, but before this debates comes to an end they will be invoked, and rightly so (even if only invoked informally), as constitutional precedents that no new amendment may violate.

I personally believe that the issue should be left to the states, not only because marriage is currently regulated by them, but because it would avert a cultural war. A confrontation over slavery required a cultural war that became physical; and I do not see this issue as quite so destructive in its potential, because no one faces losing anything so great as the wealth represented by millions of slaves. Economic issues aside, I believe slavery was a more explosive issue even as a purely moral or cultural issue -- not least because race is the single most potent issue in our country. The issue of gay marriage does not require a large cultural war, and can be resolved by the states. An intervention on the federal level against vast opposition should be avoided if at all possible. And I am confident it can be avoided.

It would be desirable to have a Constitutional amendment prohibiting discrimination based upon sexual orientation. That can be had at some point, without actually causing a full-scale confrontation or conflict. Our Civil War resolved the issue of slavery, and only then was an amendment passed to clarify the issue, to set out the terms of the issue for the future. In the same way, this conflict should be settled first, without a resort to an amendment which large numbers of American citizens will feel -- perhaps because they felt truly excluded from such a method of resolving a conflict -- compelled to defy. The Constitution itself, in Article V, provides that amendments may be passed only with majority approval in Congress, which means that the population should be persuaded. And over time, people's views on sexuality have in fact been changing rapidly.

But let us hope that the amendment currently being proposed does not pass, and make our views on equal protection known.

In short: if marriage is defined with regard to religion, such an amendment breaches the First Amendment's wall between church and state; if defined without reference to religion, it openly seeks out discrimination for reasons which would be unclear, but which are surely religious. A Marriage Protection Amendment does not work any way that you cut it.


Blogger Ryan said...

I think your constitutional analysis is mistaken on a few points and I am writing to explain why. To begin, an amendment to the Constitution cannot be unconstitutional. Once passed, an amendment becomes part of the Constitution. The amendment changes, or amends, the Constitution and thus cannot violate it. A constitutional amendment is not the same thing as an ordinary piece of legislation enacted by Congress, which can indeed be unconstitutional. After ratification by three-fourths of the State legislatures or by three-fourths of the States in Convention, an amendment becomes part of the organic law of the country, that is, the fundamental law of the land. An amendment passed in such a manner is by definition constitutional.

It is true that amendments may repeal or expressly modify parts of the Constitution. It is also true that amendments may be inconsistent with either earlier amendments or the Constitution proper. The situation is self-explanatory when part of the constitution is repealed or expressly altered. It is not as obvious but almost as straightforward, however, when an amendment produces an inconsistency. Any such inconsistency is resolved in favor of the later amendment. This is based on the maxim of interpretation that the later controls the earlier. For example, this maxim reconciles the inconsistency between the Eleventh and Fourteenth Amendments. The Eleventh removes the jurisdiction of federal courts in cases involving suits against one State by a citizen of another. Thus, for example, the Eleventh Amendment prevented a citizen of New York from filing a lawsuit in federal court against the state of New Jersey. The Fourteenth Amendment altered this arrangement. Among other things, Section 1 of the Fourteenth Amendment prohibits states from depriving a person of liberty without due process of law. Section 5 of the same grants Congress the power to pass laws enforcing the provisions of Section 1. Congress can therefore pass a law allowing, say, a New Yorker to sue the state of New Jersey if the state imprisoned him arbitrarily.

If ratified, the Marriage Protection Amendment would modify every earlier constitutional provision inconsistent with it.

Although this response to your analysis suffices, I’d like to discuss some of the other constitutional objections you raised.

You mentioned a few potential conflicts: the First, Ninth, and Tenth Amendments. I’ll start with the Tenth, because it’s disposed of easiest. To be sure, nothing in the Constitution delegates power over marriage to the government of the United States. But that is exactly what the proposed amendment would do. It would delegate such power from the States to the federal government. Moreover, the Tenth Amendment is routinely ignored by Congress, the President, and the Supreme Court. It has practically been repealed by inattention. This is particularly true respecting Congress’ power under the Commerce Clause, to which the Tenth Amendment is closely related. Arguments based on the Tenth Amendment do not persuade many people, not because they lack merit, but because most people simply ignore it or dismiss it as a ‘truism.’

The argument that the proposed amendment would violate the Establishment Clause is interesting. Again, the amendment would be part of the Constitution and would therefore do no such thing. But, even assuming an amendment could violate the Constitution, I still don’t think that would be the case. I might add here that the Establishment Clause is particularly difficult to understand, as is the relationship between the 11th and 14th Amendments. I think they involve some of the most complex issues of constitutional law. Anyway, widespread agreement does not exist as to what the Establishment Clause means, or rather, as to its scope. All agree that it prohibits Congress from establishing a national religion, i.e., passing legislation which in effect says Lutheranism, for instance, is the religion of the U.S. and allows tax dollars to support its churches. As is patently clear from the proposed amendment, Congress is doing no such thing. Indeed, Congress is only proposing the amendment, and doing nothing more.

It does not make much sense to scrutinize the proposed amendment as if it were legislation, but even it if were, it would likely pass constitutional muster. The current test the Supreme Court uses to assess whether legislation contravenes the Establishment Clause is this. Action by the government 1.) must have a secular purpose, 2.) cannot promote or inhibit religion, and 3.) cannot be excessively entangled with religion. I do not see how the marriage amendment would fail this test, even if it were legislation permitting some type of government action.

Finally, I’m not quite sure what to make of your assertion that “the Constitution cannot be made to invoke religion.” Regardless, for the reasons discussed above, the proposed amendment would not violate the First Amendment.

You also mentioned the Ninth Amendment. Like the Tenth, the Ninth Amendment is also routinely ignored. Nonetheless, that does not mean that arguments based upon it lack merit. On the contrary, the Ninth Amendment is eminently important and understanding it is the key to a proper understanding of the Bill of Rights. It is primarily a rule concerning interpretation. It instructs that simply because certain rights are listed does not mean that other rights do not exist. I think a strong case could be made that the proposed marriage amendment offends the spirit of the Ninth Amendment. But the Sixteenth Amendment surely does, too, as do the innumerable laws, codes, and regulations dictating what people can do with and to their bodies and how people must run their businesses, when such conduct neither impairs nor interferes with the rights of others.

Irrespective of the above constitutional analysis, I strongly oppose the amendment and also hope it fails to pass.

August 01, 2005 10:28 PM  
Blogger Kevin Rosero said...

Just the sort of comment I'd hoped to get on this blog -- thank you. You've studied law so I want to ask you, since you oppose the proposed amendment, what would your argument be against it?

August 02, 2005 7:14 PM  
Anonymous Anonymous said...

Well, as I wrote, there is no constitutional argument against it, or against any proposed amendment, in the sense that amendments cannot violate the Constitution. One must oppose its ratification. Really, the arguments against it, as I see it, must be based on constitutional or political philosophy. Study of the law will not offer much aid on either of those fronts. (Constitutional philosophy is not the same as constitutional jurisprudence, which is what lawyers study. Most lawyers are clueless when it comes to constitutional philosophy and even constitutional law, which is also different from constitutional jurisprudence. Since I’ve gone this far, I might as well complete this parenthetical. Constitutional law consists of the text of the Constitution and the law necessarily derived therefrom, while constitutional jurisprudence consists of the doctrines the Supreme Court makes up, often said to be grounded in the Constitution, though in actuality rooted nowhere but in the predilections of the justices then sitting on the Court.)

Here, in brief, are my two arguments against it. One, the amendment consolidates more power in D.C., once again bringing another aspect of life, at least partially, under control of the feds. Consolidation of power is almost invariably, if not always, a bad thing. Allowing states to have different policies is a better approach because it promotes experimentation and competition by preventing one rule from applying to all Americans. It is more of a grass-roots approach on the side as opposed to top-down control from the center.

Two, most amendments do and all amendments should either restraint the power of government or secure the rights of the people. This proposed amendment would do neither.

August 02, 2005 11:47 PM  

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