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Amendment Best Response to Assaults Against Marriage

By Lynn D. Wardle
Lynn D. Wardle teaches at the Brigham Young University Law School.

On Tuesday, the Deseret Morning News published a full-page ad for the "Human Rights Campaign" featuring statements by several respected conservative leaders opposing the proposed Federal Marriage Amendment. I strongly support the constitutional principles they mentioned, and I used to criticize the FMA for similar reasons.

However, after carefully considering this for many months, because of recent dramatic developments, I have come to the conclusion that it is crucial to pass the FMA.

Under the Constitution, the regulation of marriage and family relations was left to the states. Under the principle of federalism, the national government has no authority to directly regulate family law. Because of federalism in family law, the states are able to adopt differing family policies. That has provided diversity, allowed experimentation, and fostered pluralism. If family law were regulated by the national government, that rich pluralism and recognition of diverse minority voices would be lost.

Federalism complements another basic constitutional principle that "governments derive their just powers from the consent of the governed," as Jefferson wrote in the Declaration of Independence. That means that the people subject to the laws are the ones who should make the laws, especially the basic constitutional rules by which they are governed.

Our Constitution also rests upon a foundation of certain social institutions and principles. One of those fundamental principles is respect for and protection of the institution of conjugal marriage of a man and a woman. Some historians call it "republican marriage" because the Founders understood it to be the basic social unit necessary to inculcate civic virtue and nurture the values necessary to maintain a republican form of government. Thus, protecting the institution of marriage is crucial to preserving our constitutional government. While our government can tolerate much diversity, even some alternatives to conjugal marriage, there must remain a critical mass in society to maintain the institution of marriage to foster and transmit basic constitutional values. Federalism accommodates diversity while protecting the critical mass.

A combination of recent legal developments seriously threatens the integrity of the institution of marriage and undermine the basic constitutional principles of federalism and self-government.

Recently, the Massachusetts Supreme Judicial Court declared same-sex marriage legal in Massachusetts. The Vermont Supreme Court previously held that same-sex unions must be given the same legal status and rights as marriages. Both rulings violate the consent-of-the-governed principle. Both courts tried to coerce compliant legislatures to endorse their rulings. These decisions demean, devalue and denigrate the institution of marriage and violate the right of the people to create fundamental rights and define their own basic social institutions.

The U.S. Supreme Court's Lawrence decision last summer holding "irrational" and unconstitutional laws that prohibit sodomy also illustrates the dangerous propensity of some judges to substitute their own subjective value preferences for those of the elected representatives of the people, and to nationalize by judicial fiat issues that are best regulated at the local level through democratic processes that reflect local conditions and values.

The time has come to take effective legal action before these radical trends and accelerating pressures irreparably damage marriage, federalism and self-government. While I am reluctant to recommend amending our great Constitution, especially concerning family law (and for that reason I previously criticized the FMA), I am now convinced that an amendment may be the only effective remedy to head off renegade judges who are abusing judicial power to impose their personal policy preferences, and to restrain irresponsible politicians who pander to gay activists.

The Federal Marriage Amendment introduced in Congress (H.J. Res. 56) offers a reasonable solution. It abolishes same-sex marriage in the United States, bars judges from mandating same-sex unions, but preserves both federalism and self-government by protecting the right of state legislatures to decide whether and to what extent to give some legal benefits to unmarried (including same-sex) couples. The FMA is a timely and vital response to the serious assaults against the institution of marriage, the principles of federalism and self-government, the integrity of our civic society, and the welfare of future generations from irresponsible judicial decisions and radical political attempts to legalize same-sex unions and to force all states to recognize them.

It is time to stand up for marriage and to defend the institution of marriage in our constitutional law. It is time for all good men and women to unite in support of the Federal Marriage Amendment.

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© July 2015