WASHINGTON (ABP) — As supporters vow to continue the fight for a constitutional amendment banning homosexual marriage, many leading constitutional scholars say an amendment is too drastic a measure.
Louis Michael Seidman, professor at Harvard Law School, said the proposed Federal Marriage Amendment falls short of the criteria set forth by the Constitution Project, a nationally recognized group of scholars devoted to constitutional issues. In 1999 the group issued “Great and Extraordinary Occasions,” a document listing eight guidelines to meet when amending the Constitution.
“First of all, in all forms, the amendment is not drafted in a clear way, and people haven't thought through all of the consequences,” Seidman, legal counsel for the Constitution Project, told ABP. He said for example, under some interpretations of the amendment, Massachusetts — which legalized homosexual marriage in February — could be forced to stop giving marriages in favor of civil unions.
The second problem, according to Seidman, is that a constitutional amendment “ought to be the last resort rather than the first.” He said there is no reason to think the Defense of Marriage Act, a 1996 federal law that says states are not required to recognize same-sex marriages, doesn't already protect states that refuse to legalize homosexual marriage.
David Wagner, professor at Regent University School of Law, disagreed with that reasoning and said it only makes sense to act now to ban gay marriage nationwide.
If proponents of the Federal Marriage Amendment wait and see if the Supreme Court overturns the Defense of Marriage Act, the amendment “will be that much harder to pass,” Wagner said. “Right now, there is no legal protection from the Massachusetts ruling going national, and defenders of marriage want to prevent that from happening while they can,” Wagner said.
Amendment proponents lost the initial battle in the Senate July 14 when the Federal Marriage Amendment failed to gather the 60 votes needed to continue debate.
Seidman, the Harvard professor, said a likely reason the amendment didn't pass was that senators bypassed the usual steps in proposing a constitutional amendment. “When the process is working appropriately, there is a congressional committee set up, they hear testimony and there is a markup where people think through legal issues,” he said. “That did not happen here.”
The federal Constitution has been amended only 27 times in more than 200 years. Of those 27 amendments, only the Prohibition Act of 1920 took away rights rather than guaranteeing them, and that was quickly repealed. If passed, the FMA would be only amendment to limit rights based on the sentiment of the majority, observers note.
“This would be the first time … that the Constitution was used to try to determine how people led their lives,” said Mickey Edwards, professor of public and international affairs at Princeton University.
Edwards, speaking with a recent panel of other constitutional experts hosted by the American Constitutional Society for Law and Policy, said the Federal Marriage Amendment does not fit into the structure and theme of the Constitution.
“I think it's so fundamentally different from the rest of the Constitution that it fails in that regard of meeting our standards,” Edwards said.
But Wagner, from Regent University, called that claim “nonsense.” By definition, amendments to the Constitution don't fit the structure of the document, he said. Opponents of the FMA “are trying to create a false distinction,” he said. “There is no such scheme of a categorization process.”
Ginny Sloan, president and founder of the Constitution Project, said that people are rightly very conservative about amending the Constitution. “There have been 11,000 proposed amendments to the Constitution, but so few of them see any action in Congress.”
Sloan, former counsel to the House of Representatives Committee on the Judiciary, likewise pointed to the Defense of Marriage Act as an alternative available to gay-marriage opponents. “There's a way short of amending the Constitution that accomplishes the same goal,” she said. “If the Defense of Marriage Act is constitutional, they've got what they want. And no one's really tested the constitutionality of it.”
Although proponents of the Federal Marriage Amendment say they will not give up the fight, many observers believe the amendment will not see any more movement, at least in this election season.
Seidman pointed to failure of the FMA in the Senate as evidence the tide of public opinion has turned against a constitutional solution to the gay-marriage issue. “It seems to me the culture is moving strongly in the opposite direction, and I think this was the high-water mark,” Seidman said.
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