The Senate and the Marriage Protection Amendment

The Federal “Marriage Protection Amendment” is set to hit the floor of the U.S. Senate today, though opponents may block a yes or no vote. In any event, it is an important event. Opponents of the measure have now found their mantra, arguing that it is “wrong to write bigotry into the Constitution.” In other words, the only motivation for protecting marriage is bigotry. The opponents are also trying a new tactic, arguing that the decision is best left to the states.

This argument is intellectually dishonest for at least two reasons. In the first place, it ignores the obvious fact that federal courts are poised to make this a federal issue by fiat — just as the Supreme Court did in Roe v. Wade on abortion and in Lawrence v. Texas on homosexuality. Secondly, those who argue that the decision should be left to the states are generally (but not exclusively) those who defend Roe to the hilt. So much for leaving the big decisions to the states.

In reality, they know that leaving the decision to the states means leaving the decision to the judges. As I have often argued, we must define marriage for the judges, or the judges will define marriage for us.

President George W. Bush made the crucial argument in his statement offered Monday:

This national question requires a national solution. And on an issue of such profound importance, that solution should come not from the courts, but from the people of the United States. (Applause.) An amendment to the Constitution is necessary because activist courts have left our nation with no other choice. When judges insist on imposing their arbitrary will on the people, the only alternative left to the people is an amendment to the Constitution, the only law a court cannot overturn.

The constitutional amendment that the Senate will consider this week would fully protect marriage from being redefined. It will leave state legislatures free to make their own choices in defining legal arrangements other than marriage. A constitutional amendment is the most democratic process by which our country can resolve this issue. In their wisdom, our founders set a high bar for amending the Constitution. An amendment must be approved by two-thirds of the House and the Senate, and then ratified by three-fourths of the 50 state legislatures. This process guarantees that every state legislature and every community in our nation will have a voice and a say in deciding this issue.