by Peter Merz
Looking at the issue of "Should the United States Constitution be amended to define marriage" I have to look at this from two separate strains of thought. One is the moral implications of such an amendment. And the other is would such an amendment be unconstitutional in that it would be stomping on states' rights in an attempt for a uniform code regarding marriage?
Looking at this issue through moral lenses (moral lenses rooted in the Holy Bible) it is very tempting to say sure thing. Let's go ahead and amend the U.S. Constitution so that marriage stays as the Bible defines marriage (between one man and one woman). One could even justify this move by rationalizing that since over 30 states have passed state amendments defining marriage as being between one man and one woman that there are Biblically moral and that the majority would be in sync with such an amendment.
But then there are the stubborn facts like constitutional precedent. You know things like the fact that in the U.S.A., civil marriage is governed by state law and not federal law. You see each state is free to set the conditions for a valid marriage, subject to limits set by state's own constitution and the U.S. Constitution. In fact, "[T]he State . . . has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved," Pennoyer v. Neff, 95 U.S. 714 (1877). Traditionally, a marriage was considered valid if the requirements of the marriage law of the state where the marriage took place were fulfilled. (First Restatement of Conflicts on Marriage and Legitimacy s.121 (1934)). However, a state can refuse to recognize a marriage if the marriage violates a strong public policy of the state, even if the marriage was legal in the state where it was performed. (Restatement (Second) Of Conflict of Laws § 283(2) (1971).) States historically exercised this "public policy exception" by refusing to recognize out-of-state polygamous marriages, underage marriages, incestuous marriages, and interracial marriages. Following these precedents, nearly all courts that have addressed the issue have held that states with laws against same-sex marriage can refuse to recognize same-sex marriages that were legally performed elsewhere. Same-sex marriage is currently legal in five U.S. states: New Hampshire, Massachusetts, Vermont, Iowa and Connecticut. In 2003 and 2008 respectively, the Massachusetts and California Supreme courts ruled in Goodridge v. Department of Public Health and In Re Marriage Cases that the states' constitutions required the state to permit same-sex marriage.
Now that being said the federal government has and still does play a role in defining marriage.
Although individual U.S. states have the primary regulatory power with regard to marriage, the United States Congress has occasionally regulated marriage. The 1862 Morrill Anti-Bigamy Act, which made bigamy a punishable federal offense, was followed by a series of federal laws designed to end the practice of polygamy. In 1996 as a reaction to a state level judicial ruling prohibiting same-sex couples from marrying that may violate Hawaii's constitutional equal protection clause (Baehr v. Miike, 80 Hawai`i 341), Congress passed the Defense of Marriage Act (DOMA), which defines marriage as a legal union of one man and one woman for the purpose of interpreting federal law. Under DOMA, the Federal government does not recognize same-sex marriages or civil unions, even if those unions are recognized by state law. For example, members of a same-sex couple legally married in Massachusetts cannot file joint Federal income tax returns even if they file joint state income tax returns.
So though it is true that primarily states have had first dibs at defining and regulating marriage in their respective states, it is also true that the federal government has also played a role that at times supersedes the states' laws with regards to marriage. So now coming full circle back to the whole issue of should the U.S. Constitution be amended to define marriage? That has demonstrated to be a matter of could've, should've, didn't.
The measure proposing a constitutional marriage amendment was voted down in 2006 with the final vote being 236 yea votes to 187 nay votes, where 290 yea votes (two-thirds) are required for passage. It is extremely unlikely given the current congressional and senate makeup of such an amendment passing by a two-thirds margin. So whether or not such an amendment should exist seems something of a speculative and hypothetical question at best for the time being.
Biblically speaking I would side with yes there should be a U.S. constitutional amendment defining marriage.
Legally speaking there are strong arguments for such an amendment being passed.
There has been a trend of the judicial system overruling the will of the people in individual states. The people by referendum would vote to define civil marriage as being between one man and one woman and then the courts would come along and basically give the people the bird and say regardless of what the popular vote was same-sex marriage can and should be permitted by state law (even though it is not recognized at the federal level).
Another strong argument would be application of the Full Faith and Credit Clause, which states that with certain exceptions, a state is obligated to honor the judgments and declarations of other states.
The fact that the federal government has passed and enacted the Defense of Marriage Act should not be ignored either.
So in theory yes there probably should be a constitutional amendment added to the U.S. Constitution defining marriage as being between one mane and one woman. But in the current congressional and senatorial makeup in the U.S.A. it is highly unlikely that even proposing such an amendment would pass the two-third threshold needed to give wings to such an amendment so it can be given a ratification vote.
