Same-sex marriage:
Modern federal debate
Amendment would not
preserve union
as Constitution's
framers understood it
BY LINDA C. McCLAIN,
EDITORIAL, Newsday.com from the Web, June 11, 2006
Do we need a constitutional amendment
to preserve marriage as the framers of our Constitution knew it?
Last week, the Senate reconsidered the Marriage Protection Amendment, which
states, "Marriage in the United States shall consist only of the union of a man
and a woman." Supporters of the amendment, which was first proposed during
the 2004 election campaign, have warned that tampering with the definition of
"traditional marriage" would undermine its role in shaping good citizens and
buttressing democracy.
In an earlier hearing, Gov. Mitt Romney of Massachusetts, the one state where
same-sex marriage is legal, asked the Senate: "Should we abandon marriage
as we know it, and as it's been known by the framers of our Constitution?
Has America been wrong about marriage for 200-plus years?"
In last week's debate, senators urged that the amendment would protect a
marriage norm in effect "since the colonies were first settled" and claimed that
"our Founding Fathers never envisioned that we would be changing the very
structure of marriage."
The Marriage Protection Amendment, by a 49-48 vote, fell short (as it did last
time around) of the 60 votes needed to send it to a full vote in the Senate.
But the issue remains alive. The House will consider the amendment next
month, and it promises to be an issue in November's midterm elections.
Has America retained marriage as the framers knew it? In one sense, the
answer is "yes," because in every state but Massachusetts civil marriage is
still reserved to the union of one man and one woman.
Yet, in significant ways, the framers would not recognize contemporary family
law and practices. They viewed the husband as head of the household, as
sovereign within the home and as its representative to the outside world.
Wives could not be full citizens in the home or in society because common-law
rules of marriage imposed numerous legal restrictions on them. Married
women were denied personal self-government within marriage and equal citizenship
rights in society.
This 18th century political and legal arrangement scarcely resembles the 21st
century ideal of marriage as an equal partnership between husband and wife, in
which marital rights and duties are mutual. Once women gained the right to
vote in 1920, with the ratification of the 19th Amendment, husbands were no
longer the sole political representative of the household to the outside world.
The Founding Fathers did not hold views that spouses have a constitutional right
to privacy with respect to sex and procreation, much less that a pregnant woman
may make decisions about pregnancy without notice to or consent of her husband.
The dramatic transformations in state laws concerning families were spurred in
part by a series of rulings by the U.S. Supreme Court beginning in the 1970s.
Why do appeals to preserving traditional marriage gloss over these significant
changes in the past two centuries in family law and society's understandings of
marriage? Tellingly, calls to (as President George W. Bush has put it)
"fully protect marriage from being redefined" do not seek a full return to 18th
century marriage laws. The selective appeal to tradition may be a
strategic way to ensure midelection voter turnout, but it is not a cogent
argument for a constitutional amendment.
Hyperbolic warnings against any altering of marriage's definition fail to
address whether, in this day and age, a persuasive reason exists to restrict
marriage to the union of one man and one woman. Family law today no longer
defines set roles for husbands and wives based on gender. Instead, it
describes marriage in terms of an exclusive commitment and an emotionally and
economically interdependent partnership.
In an era when the gender hierarchy associated with traditional marriage has
yielded to a model of equal partnership, maintaining the different-sex
eligibility rule seems more a vestige of that earlier era than a fundamental
principle warranting federal constitutional entrenchment. It also ignores
the reality that gay men and lesbians are already forming families that could
benefit from marriage's protective umbrella of rights and obligations.
Marriage has been and is an evolving institution. Whatever else a federal
marriage amendment might do, it would not preserve marriage as the framers knew
it.
Linda C. McClain is the author of "The Place of Families" and
a law professor at Hofstra University.
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