Although the debate over same-sex marriage is a real one, the debate over the Federal Marriage Amendment is political theater. The FMA has never generated enough support to pass Congress by the adequate two-thirds margin, much less enough support to produce ratification by the necessary three-quarters of the states. It is strictly an election year ploy--which is why it only seems to come up for a vote during an election year.
In 2004, during the height of the anti-same-sex marriage movement, conservative leaders in the the U.S. House of Representatives were only able to generate 227 votes (out of 435 representatives) in favor of the amendment. They needed 290.
In the Senate, a majority voted (50-48) not to even bring the amendment up for a vote. Had they done so, supporters of the bill would have had to wrangle up 67 votes in support. Even if we could assume that all 48 senators who voted to bring the amendment up for a vote would have supported it, that would still leave conservatives 19 senators shy of a two-thirds majority.
So in order for the amendment to even pass Congress, a bare minimum of 63 incumbent representatives and 19 incumbent senators would need to be defeated very soon, all of them replaced by conservative supporters of the FMA. Since a considerable majority of anti-FMA representatives and senators hail from liberal districts (which is what makes it politically safe for them to oppose the bill in the first place), the odds that they would all be replaced by conservatives are negligible.
Don't even get me started on how difficult it would be to get the amendment ratified by three-quarters of the states. The bottom line: the Federal Marriage Amendment won't actually become law, and everybody in Washington knows it.
Here's a pop quiz: What do John McCain, Rudy Giuliani, George Pataki, and Chuck Hagel have in common?
They're all Republicans.
They're all frontrunners for a major-party 2008 presidential nomination.
They all oppose the Federal Marriage Amendment.
All of the above.
I decided to begin this article with two hard truths. The first is that the Federal Marriage Amendment won't pass. The second is that this is probably the last time it will even come up for a vote. Most of the viable 2008 Republican presidential candidates, and all of the viable 2008 Democratic presidential candidates, have already stated strong and unambiguous opposition to the Federal Marriage Amendment.
So that's the good news. The better news is the polling data. But before we look at the United States, let's look at Canada.
In June 1996, Canada's largest polling firm (Angus Reid) and its largest news organization (Southam News) conducted a major nationwide poll on the issue of same-sex marriage. What they found was that 49% of Canadians supported same-sex marriage, 47% opposed it, and 4% were undecided. In 1999, Canadian House of Commons declared (216-55) that marriage was between a man and a woman, and that same-sex marriage was invalid.
Then, as regional courts began to find same-sex marriage legal in specific provinces in 2003, public opinion shifted. In June 2005, parliament--affected, no doubt, by shifting public opinion--voted (158-133 in the case of the House, 43-12 in the case of the Senate) to make same-sex marriage legal throughout Canada. By the time Canadians were polled in January 2006, public opinion reflected almost universal support for same-sex marriage. So what does this mean? It means that political measures can temporarily affect popular support for same-sex marriage--but that the more people see of same-sex marriage in practice, the less likely they are to see it as a threat.
This pattern is beginning to manifest itself in the United States. In December 2004, Pew Research conducted a poll finding that 61% of Americans opposed gay marriage. When they conducted the same poll in March 2006, the number had dropped to 51%.
And even Americans who oppose same-sex marriage don't necessarily support a constitutional ban. In a May 2006 poll, only 33% of Americans supported the federal gay marriage ban, with 49% specifically opposing it (holding the view that marriage should be a state issue) and 18% undecided.Many critics of same-sex marriage argue that if it is legalized, incest, polygamy, and bestiality will ensue. What they usually fail to point out is that the Federal Marriage Amendment doesn't actually ban incest, that laws pertaining to marriage and divorce could not be adapted to include polygamous unions, and that in cases of bestiality, one of the parties involved isn't human and therefore isn't covered by the Bill of Rights. And if the courts ever decide that dogs, cats, squirrels, and so forth are covered by the Bill of Rights, cross-species marriage will be the least of our worries.
In any case, the way to ban incestuous, polygamous, and half-bestial marriages is not by passing a constitutional amendment that bans same-sex marriages. It's by passing a constitutional amendment banning incestuous, polygamous, and half-bestial marriages. And unlike the Federal Marriage Amendment, that constitutional amendment would receive enough votes to actually pass. Most arguments against same-sex marriage ultimately boil down to the idea that the government should protect the "sanctity" of marriage, or that marriage is a "sacred trust" handed down by God.
But the truth of the matter is that the government has no business doling out sanctity and sacred trusts in the first place. Marriage, as far as the government is concerned, is and must be a secular institution. The government can no more hand out a marriage certificate that grants a sacred union than it can hand out a death certificate that grants a place in the world to come. The government does not hold the keys to the sacred.
And just as the government does not hold the keys to the sacred, it should not make decisions that are based on the premise that it does. If the purpose of the Federal Marriage Amendment is to "protect the sanctity of marriage," then it has failed in theory even before it has had the opportunity to fail in practice.
Article IV of the U.S. Constitution requires each state to recognize the institutions of other states. This article was not written to cover such institutions only in cases where there was no disagreement between the states as to the criteria, because those cases can be negotiated peacefully between states and require no federal intervention. No, the explicit purpose of Article IV is to ensure that, when states disagree, they do not invalidate one another's power to govern, dissolving the United States into a pre-federal confederacy with 50 states and 50 different systems of law.
So, yes, the Supreme Court--even a conservative Supreme Court--might find that a same-sex marriage performed in Massachusetts must be recognized in Mississippi. But isn't this exactly as it should be? If we set a precedent, even through amendment, that allows Mississippi to ignore Massachusetts marriages because the criteria for same are not specific enough, then we set a precedent for Massachusetts to attempt to do the same with regard to Mississippi marriages. Our federal system is one that forces us to get along--even when we disagree. The controversial topic of same-sex marriage should be treated no differently in this respect than any other controversial topic that has emerged in our country's history.Every active amendment to the U.S. Constitution, without fail, was written to protect some specific or nonspecific group of people--the press, religious sects, racial minority groups, and so forth. It empowers people. The only amendment that didn't empower people was the Eighteenth Amendment, mandating Prohibition--and we repealed that one.
States regulate. Laws regulate. The Constitution deregulates. It untangles. It liberates. It takes power away from the government and gives it to the people, not the other way around. And it must do so in order to honor the words of the Declaration of Independence, which stated the purpose of government quite clearly:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights ... [and] that to secure these rights, Governments are instituted among men, deriving their just powers from the consent of the governed.
If we amend the Constitution to restrict rights, rather than to protect them, we set an ominous precedent. In countries where same-sex marriage has been legalized--Belgium, Canada, the Netherlands, and Spain--the rate of heterosexual marriage stability has either gone up, remained stable, or declined consistent with other countries in the region that do not recognize same-sex marriage.
Many critics of same-sex marriage cite the work of Stanley Kurtz, a pundit at the right-wing Hoover Institution (which describes him in his official bio as an "outspoken combatant in America's culture wars"). Kurtz argues that gay marriage in Denmark, Norway, and Sweden has destroyed the institution of heterosexual marriage. There are several problems with his work, most notably that:
Same-sex marriage isn't actually legal in Denmark, Norway, and Sweden. These countries have domestic partnership laws, comparable to those of California and Vermont.
Marriage decline in Scandinavian nations is comparable to marriage decline in other relatively affluent European nations that do not legally recognize same-sex relationships, such as France and Germany.
Marriage decline has been ongoing for decades, and does not correlate to legal recognition of same-sex relationships.Few would argue that the institution of marriage isn't going through a period of transition--it has been since the 1960s, long before same-sex marriage became an issue--but this is because the cultural trappings of the institution itself have not adapted to the changing needs of the contemporary Western world following the success of the women's liberation movement and widespread availability of the birth control pill. Before women's liberation, women were essentially born with a career track in place. They would:
Attend school and learn home economics, so as to be competent wives and mothers.
Find a man and marry before age 20.
Have children quickly. Most estimates hold that during the 19th century, 80% of women had children within their first two years of marriage.
Spend most of the rest of their active years raising children.
This is why so many prominent 19th-century suffragists tended to be middle-aged or older, even though young women were more likely to support the movement: Because young women were too busy taking care of their children to participate. Menopause was the point at which activism most commonly became an option.
The women's liberation movement has been fighting this mandatory "career track" for decades, and achieving a great deal of success. In the process, marriage has been associated with this "career track." Same-sex marriage would increase the number of cases wherein the career track wouldn't apply, making marriage a more appealing option for many heterosexuals.
There is also the matter of heterosexual guilt. Some heterosexuals, particularly those with lesbian and gay friends and family members, have foregone marriage because they regard it as a discriminatory institution. Legalizing same-sex marriage would allow these heterosexual supporters of gay rights to get married with a clear conscience. From the colonial era until the Supreme Court's decision in Lawrence v. Texas (2003), same-sex relations were illegal in (initially) all or (later) most of the United States. Shortly after the Lawrence decision, Late Night with Conan O'Brien aired a satirical clip in which actors portraying a flamboyantly gay couple expressed their delight at finally being able to have sexual relations, since they had lived in total celibacy out of fear of breaking the law. And it was a valid point: Sodomy (or "unnatural intercourse") laws were flouted long before they were ever officially struck from the books.
State bans on gay sex were ineffective at banning gay sex, and state bans on gay marriage are equally ineffective at preventing lesbian and gay couples from having weddings, exchanging rings, and spending the rest of their lives together. State bans on gay marriage can't prevent a lesbian or gay couple's family or friends from describing them as married. It can't prevent proposals, tuxedos and gowns, honeymoons, anniversaries. Just as African-American couples of the slavery and Reconstruction era happily "jumped the broom" and got married in states that did not recognize their unions as valid, lesbian and gay couples are getting married every day. The government can't prevent that.
All it can prevent is hospital visitation, inheritance, and the thousands of other small legal perks that ordinarily come with marriage. It can, in short, take petty measures to punish committed lesbian and gay couples for their monogamy, for their willingness to commit to each other for life--but it can't do anything to prevent these unions from taking place.Some critics of same-sex marriage argue that the purpose of marriage is to provide institutional support for childrearing and that lesbian and gay couples, who (like infertile heterosexual couples) cannot biologically produce children by way of each other, would have no need of this institutional support. But the truth is that, according to the 2000 Census, 96 percent of U.S. counties--no matter how remote, no matter how conservative--have at least one same-sex couple with a child. However one may feel about this, it's happening now--and if the legal institution of marriage is good for the children of heterosexual parents, why should the children of lesbian and gay couples be punished by their government simply because of the sexual orientation of their parents?But in the final analysis, the single best reason to legalize same-sex marriage is not because it's benign, or because it is inevitable, or because it is what our legal history demands of us, or because it is more conducive to family life. It is because legalizing same-sex marriage is the kind thing to do.
I am constantly amazed at what lesbian and gay couples tell me about the friendships they have with social conservatives have very traditional ideas of what a relationship should be, but who nevertheless treat them with great kindness, generosity, and warmth. Likewise, nearly every conservative critic of same-sex marriage will happily admit that they have close lesbian and gay friends whom they care deeply about.
Same-sex couples seeking marriage rights are obviously determined to stay together, or they wouldn't be trying to get married. So why make their lives more difficult? I feel confident that most conservatives wouldn't slash gay couples' tires, or kick over their mailboxes, or prank call them at 3am. So why pass laws that will prevent them from being able to file income taxes jointly, or visit each other in the hospital, or inherit one another's property? Social conservatives routinely speak of their moral obligation to promote legislation that upholds the values they live by. When that becomes a reality, the very kind and loving people who make up the majority of social conservatives in this country will be among those working to help their lesbian and gay neighbors, rather than working to make their lives more difficult.