Changing the Constitution to Protect Adam and Eve?





Mr. Luker, an Atlanta historian, is the author of The Social Gospel in Black and White: American Racial Reform, 1885-1912 and co-editor of the first two volumes of The Papers of Martin Luther King. He is a writer for the History News Service. Click here for his blog on HNN.

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In June, after the Supreme Court found anti-sodomy laws unconstitutional in Lawrence v. Texas, Republican Sens. William Frist of Tennessee and Rick Santorum of Pennsylvania endorsed a proposed constitutional amendment defining marriage as the union of a man and woman. Their impulse to protect traditional marriages may seem reasonable, but it's a bad idea.

Why? Because it would write into the Constitution a doctrinal statement on a matter marginal to the Constitution's purpose and deny a benefit of citizenship to some American citizens.

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The Constitution's authors made changing it difficult to shelter it from such bad ideas. The U.S. Constitution, like all others, frames a structure of government and defines the appropriate relationship of citizens to it. Amending the Constitution requires that a proposed amendment be approved by two-thirds of each house of Congress. It's then a matter for the states, three-fourths of which, acting either through state legislatures or specially called state conventions, must approve the amendment before it's ratified. Surviving that ordeal is so difficult that we have amended the Constitution only 27 times in 215 years.

Only once has an amendment concerned a social issue marginal to the Constitution's framework of government and the citizen's relation to it. The 18th amendment, ratified in 1919, banned the sale of alcoholic beverages in the United States. Subsequent experience with constitutionally mandated sobriety showed the folly of writing marginal social values into the Constitution. Americans learned a lesson from that and revoked the 18th in a 21st amendment in 1933. Such basic values as the wrongfulness of murder or the immorality of prostitution aren't and shouldn't be embedded in constitutional amendments. Ordinary statutes do that work.

Some states burden their constitutions with all sorts of provisions to establish law on this or that. Alabama is the most notorious example. Adopted in 1901, Alabama's constitution has 287 Sections grouped into 17 Articles. Subsequently, the state has added 706 amendments to an already cumbersome document. The amendments intrude on local governance in hundreds of ways, from regulating bingo games in the town of Jasper to providing for the compensation of the Judge of Probate in Barbour County. As a result, Alabama's constitution is an embarrassment to the state.

The senators' impulse to protect traditional marriage is a conservative reaction to Lawrence v. Texas. Bastions of conservative opinion from the Vatican to National Review and the Family Research Council have joined the backlash. President George W. Bush says that he supports the codification of a traditional definition of marriage and is having executive branch attorneys look into doing it. That's gratuitous for two reasons. Such a definition is already in the Defense of Marriage Act passed by Congress and signed by President Clinton in 1996. Apart from that, the Constitution gives the executive branch no role to play in amending the Constitution.

Amending the Constitution with a definition of marriage as the union of a man and woman is a vote of no confidence in a Supreme Court that in Lawrence found that state sodomy laws are unconstitutional by a six to three vote. Four of the six-member majority were Republican appointees to the Court. Another Republican appointee, Justice Clarence Thomas, who voted with the minority, said that had he been a state legislator rather than a judge he would have voted against Texas's sodomy law. Thomas is a defender of states' rights on the Court and has signaled in an opinion in United States v. Lopez that he believes marriage is a matter of state law. If the Defense of Marriage Act faces a constitutional challenge, Thomas may vote against it as an intrusion on the prerogatives of the states.

In any case, we should be skeptical of proposals to use the Constitution to protect traditional marriage from Supreme Court decisions we don't happen to like. My marriage to a woman would not be diminished by extending our legal rights as a married couple to a same-sex couple. Attempting to exclude them from the legal rights of marriage runs directly contrary to the values affirmed by our amending process. Ten of the 27 amendments to the Constitution were adopted to protect citizens' rights. Five other amendments were adopted to extend those rights to people who had been excluded from full citizenship. We have never amended the Constitution to prevent citizens from full access to the pursuit of happiness. Amending the Constitution to protect traditional marriages from phantom fears is a bad idea. Backlash is a sorry reason for doing it, one unlikely to yield good constitutional law.


This piece was distributed for non-exclusive use by the History News Service, an informal syndicate of professional historians who seek to improve the public's understanding of current events by setting these events in their historical contexts. The article may be republished as long as both the author and the History News Service are clearly credited.


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J. Caramello - 10/15/2003

I recently read something about getting marriage delegalized. Sounds fair to me, no more special breaks or tax advantages to male/female pairs. Of the 50 percent or so that didn't already get divorced, maybe we could haul them before a "delegalization court", you know, something like the de-Nazification courts held in Germany in the wake of World War II. Then we could send them to Northern California for reeducation and immersion in the new Socialist realities.


Josh Greenland - 8/22/2003

"Did someone here try to disregard what the Bible says about marriage?"

Screw what the Bible says. The USA isn't a theocracy.

"Where does it stop? If two homosexuals living together under this "legal bond" can be entitled to rights that two brothers living together are not entitled to then what? Is that just? I don't think."

Why not? What about all the heterosexual married couples who don't have children, and don't even have sex? What's the difference?

"Marriage is meant to join a man and woman together in a life long lasting realitionship so that they may bear children that will be an asset to society."

So I guess heterosexual couples who are too old to have children, who are infertile, who don't have coitus or who have no intention of having children shouldn't be allowed to marry. Is that what you are proposing?

"Peace to you all....don't let the minorities regulate how societies view deep rooted, socially uplifting traditions."

Peace to you all, except for the minorities. That says everything about where you're coming from.


mr - 8/21/2003

I was curious why you would say "In a country where the separation of church and state was a pillar of its foundation"

This can be taken to have at least some truth. This country was built on the principle that the government would not and could not support a particular religion or disallow anyone the freedom of religion. No where in any document does it ever mention excluding God from government. In fact there are many historic documents that mention The Almighty, The Creator etc.

I have heard that one strategy Hitler used was to repeat a lie so many times people would start to believe it. It sounds like what is happening here on issues like this.

God has been and is on "our side". Why? I think it has much to do with the fact that the USA has, since its birth, given each person the God given right to accept or reject God and worship or not worship Him in whatever way each person chooses to. God has surely blessed the USA. I think it is quite apparent.


mr - 8/21/2003

Did someone here try to disregard what the Bible says about marriage? Depends on who interprets it??...oh come on, get with the program. That is a weak arguement So then why don't you disregard what the constitution says about our rights? God, explaining to us, through the Bible was the creator of marriage. Like to believe it or not, it's the Truth.

Where does it stop? If two homosexuals living together under this "legal bond" can be entitled to rights that two brothers living together are not entitled to then what? Is that just? I don't think. Do two heterosexual men living together have to pretend to be homosexual to obtain these rights? Looks like that would have to be the way. OR why don't we just say anyone who lives together is able to be married? bah...I don't think so. Marriage is meant to join a man and woman together in a life long lasting realitionship so that they may bear children that will be an asset to society.

Peace to you all....don't let the minorities regulate how societies view deep rooted, socially uplifting traditions.


Gus Moner - 8/18/2003

I fail to understand WHY you want to leave “aside the European 'genocide' of North America”. OK, let’s.

Marriage is an arrangement between two people. An institution has been created around it-, as it seems many do want to be married. I agree there are restrictions in societies. But you offer no rationale why some people must be excluded. The restrictions are culturally understood, however that does not make them right. The Southern states had a cultural understanding regarding the role of the black man, but that did not make it right.

No one is requiring any religion to accept this union, they are themselves taking the initiative to be more inclusive and less segregationist.


TCG - 8/16/2003

Leaving aside the European 'genocide' of North America, and the guilt of Christians thereof, I think some structure or common understanding of marriage must be understood and agreed upon. I don't think that our present American society can withstand the potential fallout from a view of marriage which depends solely on what the participants feel or think. I disagree that "marriage is what it is to each individual couple". Our western based society places certain cultural restrictions on those entering into a marriage contract. While not universal, most would agree that these restrictions are culturally understood. There must be some parameters to marriage. If the alternative is civil unions recognized by the State Govts, fine. If it is civil unions recognized by the Feds., fine. Requiring any religious body to adhere to these precedents is unwarranted and unconstitutional. The Protestant main line churches are already destroying themselves over this and other contemporary issues, and while civil unions won't get them off their hooks, it provides an easy out.


Gus Moner - 8/16/2003

Colonised indeed, and along the way the Christians committed genocide and conquest in the name of Christianity. In a laic republic, mind you.

Marriage is what it is to each individual and couple, not what the bible may or may not say, depending on the interpreter.


Dave Livingston - 8/14/2003

Humbug! How may an amendment to the Constitution that serves to preserve an essential element, the nuclear family, of the traditional culture?

Like it or no, this country was colonized by Christians for the benefit of Christians. So when the Founders got around to composing the legal bedrock for this nation they were swayed by the counter-cultural cant of the so-called enlightenment, actually an endarkenment via moral hedonism of the traditional Christian Western culture? regardless, the foundation on which this house, these United States, was built was Protestant Christianity.

But as Joe Sobran, the Catholic columnist more or less wrote, "This Protestant culture, including all of us who live here, whether Christian or no, Protestant or Catholic, is brilliant but it appears destined to be short-lived because it seemingly lacks the will to survive." This effort to Constitutionally define marriage is an attempt to preserve the culture.


Josh Greenland - 8/14/2003

"It may be that we ought further to delink the religious sacrament or ordinance of marriage and the legal status of civil union."

Yes, allow same sex and opposite sex domestic partner relationships, register THOSE with the government, tax them like marrieds are taxed now, and give domestic partners the hospital visitation and inheritance rights that spouses have now. And get houses of religious worship completely out of any relationship with the government in civil unions.


Gus Moner - 8/13/2003

In a country where the separation of church and state was a pillar of its foundation, that we are still struggling with these issues indicates the stranglehold on socio-political issues that religious organisations and thinking have been permitted to wield.

Constant invocations of God in political discourse, from the dollar notes and coins to the politicians constant use of religion to ingratitatte themselves with the faithful have led to this appalling crossroads. Of course, God is always on our (their) side.....


Ralph E. Luker - 8/13/2003

Thanks for these two additional points. Of course, I agree with you about both of them. It may be that we ought further to delink the religious sacrament or ordinance of marriage and the legal status of civil union.


Oscar Chamberlain - 8/13/2003

I agree with every point of your argument.

I simply wish to add two thoughts.

1. We already have marriage laws that do not coincide with religious laws. As a society we allow divorce and remarriage even though all Catholics, and some protestants, are in a state of perpetual sin if they divorce and remarry. So, in the legal sense, there is nothing new in allowing gays and lesbians marry despite the injunctions of various denominations.

2. One of the strengths of the federal system is that it allows variations in personal relations contracts (and many other contracts) from state to state. It avoids chaos by requiring other states to recognize the validity of those contracts, even if they would not have been legal to draw up in some of those states.

Weakening that, as the Defense of Marriage Act and the proposed constitutional amendment would do, threatens far more than state sovereignty. It would create a tangle of state and federal court cases that would be extremely hard to unravel.

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