Last June, in Lawrence v Texas, [the U.S. Supreme Court] ruled that state anti-sodomy laws violated the constitutional right of adults to choose how to conduct their private lives with regard to sex, saying further that "the Court's obligation is to define the liberty of all, not to mandate its own moral code". That obligation could well lead the justices to uphold the right of gays to marry.
What the Economist author and a lot of people seem to have overlooked is that Justice O'Connor, in her crucial Lawrence concurrence, specifically and explicitly identified "preserving the traditional institution of marriage" as a "legitimate state interest."* She did this to head off the inevitable whining from Justice Scalia that striking down sodomy laws would necessarily lead to striking down laws against same-sex marriage.* This means that for the current court to strike down laws against same-sex marriage, O'Connor would either have to change her mind (something not entirely outside the realm of possibility), or the Court would have to grant heightened scrutiny to laws that discriminate based on sexual orientation.** It's not inconcievable that O'Connor could be convinced to switch sides on the gay marriage issue, but the fact that she chose traditional marriage as an example is no accident, and the precedential link between Lawrence and a strike-down of anti-same-sex marriage laws is by no means a given.
That being said, let's move on to the Constitutional Amendment issue. There's a school of legal thought that views the Constitution as a mainly procedural document. Substantive Due Process aside, the only places where the Constitution really gets into substantive, individual rights are the First, Second, and Eighteenth Amendments.**** Here's a fun game to play with your reactionary friends: Of the First, Second, and Eighteenth Amendments, which one contracts, rather than expands, substantive individual rights? Okay, now keep that in mind as you think about this next question: Of the First, Second, and Eighteenth Amendments, which one was an unmitigated disaster that was subsequently repealed after ushering in the rise of organized crime in America? Got it? Okay, now just one more question. Does the denial of marriage rights expand substantive individual rights, or contract substantive individual rights? Hint: If I *deny* you a cookie, am I giving you a cookie, or am I not letting you have a cookie?
So, while a constitutional provision that denies marriage rights to a subset of the population won't necessarily lead to an underworld renaissance, it's still inconsistent with the general jive of the Constitution.***** I've seen two different versions of the proposed amendment. The more severe one looks like this:
"Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."
This is an outright ban on gay marriage across the land. It's an outright denial of rights to homosexuals. This actually forbids state courts and legislatures from extending marriage benefits to same-sex couples. Significantly, it's the federal government telling the states what they can and can't do in an area that has historically been a stronghold of states' rights. Laws pertaining to marriage and family are the poster child of reserved powers. The notion of the federal government usurping even a portion of this power is a very, very big deal, and something that people who consider themselves to be small-government conservatives should weigh heavily against their any problems they have with the gays.
A less severe version of the amendment goes like this:
"Neither this Constitution or the constitution of any state shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."
This, while still motivated by unabashed homophobia, at least takes on some semblance of reasonableness. State and federal courts would still be prevented from reading gay marriage rights into the federal or state constitutions. But this wording would allow state legislatures to provide for gay marriage, which should satisfy the bloodlust that Dubya and his ilk have for "activist judges." Frankly, I think this version will be easier to sell to the American people. Even people who aren't necessarily comfortable with the idea of gay marriage now most likely recognize that future generations might take a different view, and only the most drooling, knee-jerk, "mah son use-ta be a gay an' now he's married an' got three kids" homophobes would want to prevent people from revisiting this issue in the future. The second version would basically table the issue for one or two decades until society advances to the point where most people don't mind so much if two guys want to call each other "hubby."
Having said that, let me be clear. I think both amendments are vicious and absurd. Does anyone remember the 1960s? Do you think we should have left things like civil rights and women's equality up to the popular vote? Should Brown v. Board have been decided by referendum? People seem to have forgotten that these so-called "activist judges" are performing an essential function of the judiciary: protecting a marginalized group from the tyranny of the majority.
The proposed amendment is a mistake. If it passes, it will be repealed, and years from now we'll look at its proponents much in the same way that we now look at the hand-wringing, long-skirted old maids who foisted prohibition upon us. The marriage amendment maniacs will be the subject of much greater contempt, however. Prohibition may have seemed like a good idea at the time; people likely didn't foresee it as an open invitation to organized crime. But a constitutional amendment grounded in animosity toward less than 10% of the U.S. population will be completely unforgivable to future generations.
*123 S. Ct. 2472, 2488.
** "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding." Id. at 2490 (Scalia and Thomas, JJ., dissenting.)
*** I refuse to entertain the argument that laws against same-sex marriage don't discriminate based on sexual orientation. That argument goes like this: "Homosexuals have the exact same marriage rights that heterosexuals have. They, like heterosexuals, are perfectly free to marry someone of the opposite sex." Only the most simple-minded and reductionist homophobe would lend any weight whatsoever to this jungle gym nonsense.
**** The Bill of Rights obviously also deals with protection from unreasonable search and siezure, self-incrimination, and cruel and unusual punishment, but these rights only materialize in the context of police proceedings. Free speech, the right to bear arms, and prohibition are all generally applicable.
***** You might be uncomfortable with the parallel between prohibition and gay marriage. After all, people can drink with or without the government being involved, but marriage is a right that only makes sense if it's conferred through the government. Doesn't that make marriage a procedural right? Well, no, I say. I think of procedural rights as pertaining to the involvement of the individual in government affairs. So when the government is investigating a crime, the individual has certain rights that the government must respect. In the case of marriage the state government is actively conferring a right onto individuals that has nothing to do with the functioning of government. Just as the Eighteenth Amendment prohibited state governments from allowing individuals to use alcohol, a marriage amendment would prohibit state governments from extending marriage rights to individuals.