Amend the Constitution to Prohibit Gay Marriage?

Editorial in the Pittsburgh Post-Gazette (Feb. 23, 2004):

For both sides [in the gay marriage debate], the Constitution is more than what the word literally means: a system for "constituting" the federal government. Especially after the addition of the Bill of Rights and post-Civil War amendments designed to protect recently freed slaves and their descendants, the Constitution is at least semi-sacred, and not lightly to be changed.

It isn't just that amending the Constitution requires super majorities -- two-thirds of both houses of Congress and three-fourths of the states. There is a popular conception that the Constitution and what the late Supreme Court Justice William Brennan called its "majestic generalities" encode timeless truths. It follows that the document should be amended only on rare occasions -- even if such a cautious approach locks in unfortunate interpretations of the Constitution by the courts.

Seventeen years ago I participated in a sort of mini-constitutional convention sponsored by the American Assembly. Participants -- judges, constitutional lawyers, political scientists, historians , journalists -- were given a blank check to revise the Constitution, perhaps undertaking radical revisions like a move toward a British-style parliamentary system. When the oratorical dust cleared, we had concluded anti-climactically that the structure of the Constitution "has, in general, proved sound, given the Civil War amendments and other adjustments. There is no fundamental reason to believe that it will not work as well in the closing years of this century and into the next."

This sense of caution also helps to explain the moribund state of the proposed Equal Rights Amendment. True, some feminists still agitate for adoption of the amendment declaring that "equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." Yet the effort has stalled. That is partly because some of the legal victories the ERA was to have produced have been secured under the current Constitution, such as the Supreme Court's 1996 decision requiring that women be admitted to the Virginia Military Institute. But it also probably reflects a preference for new rights to be discerned by courts in the Constitution as it is.

This attitude is not new. In his book "A Machine That Would Go of Itself: The Constitution in American Culture," Michael Kammen cites the results of a Roper poll taken in 1939 and again in 1946. Respondents were asked:

Which of the following most nearly represents your opinion of the American form of government?

1) Our form of government, based on the Constitution, is as near-perfect as it can be and no important change should be made in it.

2) The Constitution has served its purpose well, but it has not kept up with the times and should be thoroughly revised to make it fit for present-day needs.

Kammen notes that "a strong preference for the first option persisted."

The notion that the Constitution is "near-perfect as it is" (or as it has been interpreted by the courts) may be the best check against not only a marriage amendment but two others that are waiting in the wings. One is the much-introduced amendment to overturn Supreme Court decisions protecting the right to burn the American flag as a political protest. The other is a "religious freedom amendment," newly fine-tuned by its author, Rep. Ernest Istook of Oklahoma .

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