Despite their success in the 2004 election, gay-marriage opponents can’t seem to shake their sense of doom. Eleven states may have passed constitutional amendments defining marriage as between a man and a woman, but same-sex marriage still has an apparently ineluctable logic on its side. As homosexual activists continue to advance their cause in a sympathetic judiciary, more and more states will have gay marriage imposed on them. Gay marriage will then be imported into other states, so that eventually the Supreme Court—which for the past ten years has overturned or disregarded any doctrine standing in the way of the gay-rights movement—will have an opportunity to impose same-sex marriage on the entire country. Only a constitutional amendment, therefore, can stop gay marriage. At the same time, however, a constitutional amendment has no hope of passing. In the end, the logic of events makes gay marriage inevitable.
Hogwash. It isn’t true that only a constitutional amendment can stop the courts from imposing gay marriage. On the contrary, Congress can stop the gay-marriage movement cold by passing a simple statute. That statute need say nothing more than “No State shall define marriage as anything other than between a man and a woman.”
Surprising as it may at first seem, Congress derives the power to pass such a statute from the Fourteenth Amendment. The argument goes as follows: Section 5 of the Fourteenth Amendment gives Congress “the power to enforce, by appropriate legislation, the provisions of this article.” It is well-settled that the Fourteenth Amendment protects the fundamental right to marry. States may not violate this right by redefining marriage as something other than it really is. Therefore, Congress can pass a statute underscoring the correct definition of marriage.
Let’s unpack that. First, the Fourteenth Amendment protects the right to marry. Although it does not mention this right explicitly, the Fourteenth Amendment does prohibit states from abridging “the privileges or immunities of citizens of the United States,” depriving “any person of life, liberty, or property, without due process of law,” or denying “to any person within its jurisdiction the equal protection of the laws.” The Supreme Court has long understood this broad language to protect any right that is “implicit in the concept of ordered liberty.”
Furthermore, in Loving v. Virginia, the case that struck down anti-miscegenation laws, the Supreme Court recognized that one of these rights is the right to marry. Interestingly, the court in Loving cited an earlier case, Skinner v. Oklahoma, that connected the right to marry to the right to procreate. Insofar as biology prevents homosexual couples from procreating, one can assume that the Loving court had heterosexual marriage exclusively in mind.
Second, states may not violate the right to marry by redefining matrimony however they like. One way that states can violate the right to marry, as Loving recognized, is to criminalize certain categories of marriage. Surely another way that states can violate the right to marry is to redefine marriage out of existence. For example, if a state supreme court or legislature stipulated that “marriage in this state shall only be between an adult and his or her pet,” that state would effectively prevent people from getting married. Marriage, after all, has an essential nature, which states cannot ignore without doing away with the institution altogether.
Even gay-marriage proponents implicitly recognize that states may not redefine marriage out of existence. Homosexual activists would not be satisfied, after all, if states redefined marriage as “between one entity and another entity.” Under such a regime, one man could “marry” another man. But so too could one hermit crab “marry” another hermit crab (or a goldfish or a fire hydrant, for that matter). Gays in that case would not benefit from the elevated social and moral status that they hope to obtain by having the government recognize their relationships as “marriages.”
Similarly, if marriage were redefined to include gay relationships, straight married couples would lose the unique burdens and privileges that come with traditional matrimony. Marriage is a public act: by redefining marriage to be what it is not, states would violate the right of all persons to receive the social benefits and uphold the social expectations of being wedded to a human being of the opposite sex. Gay activists, in turn, no less than gay-marriage opponents, believe that marriage has an essential nature; they just do not believe that it must be between a man and a woman.
Third, the Fourteenth Amendment gives Congress the authority to uphold the correct definition of marriage. Section 5 of the Fourteenth Amendment states that Congress has the power to enforce its provisions by appropriate legislation. That is to say, Congress may pass legislation that prevents states from violating Fourteenth Amendment rights. Pursuant to this power, for example, Congress has passed the various civil-rights statutes.
Now, if states were to violate the Fourteenth Amendment right to marry by adopting an absurd definition of marriage, then surely Congress, under the Fourteenth Amendment, could step in and prevent states from ignoring the essential nature of the institution. Congress, therefore, has the power under the Fourteenth Amendment to make sure that all states adopt the correct definition of marriage. The only remaining question is what that correct definition really is.
There, of course, is the rub. Thus far, most courts and mainstream legal scholars would agree with the foregoing line of reasoning: there is a right to marry, states cannot violate this right by ignoring the essential nature of marriage, therefore, Congress has some discretion to impose a national definition of marriage. Where courts and scholars might differ is in how much discretion Congress actually has.
Here we move beyond legal doctrine and into the realm of politics and strategy. Let us assume that Congress did pass a statute defining marriage as between a man and a woman. Inevitably, such a statute would be challenged in the courts and the case would find its way to the Supreme Court. What is the likely result?
One cannot say for sure, but the odds favor the court upholding the statute. Certainly the justices favor such an outcome more than they favor the passing of a constitutional amendment. We can assume, of course, that the Supreme Court will continue to do everything in its power to advance the gay-rights agenda. But the court can only do so much. It cannot, for example, hand down a decision so unpopular as to produce a backlash that will undermine the court’s vaunted position in public life. The court tried that in the 1970s, when it almost did away with the death penalty and quickly had to back down.
Similarly, if the court defied the political branches on the question of gay marriage, the political branches might actually begin to fight back. Congress might, for example, strip the courts of jurisdiction to hear cases relating to same-sex marriage. The people might even pass a constitutional amendment reversing the Supreme Court’s decision. The justices, in sum, will not lightly traduce Congress and impose a policy as unpopular as gay marriage.
The court will therefore do whatever it can to avoid compelling the whole nation to recognize same-sex marriage. The beauty of a statute defining marriage as between a man and a woman is that it will force the issue upon the court. The justices know that they cannot impose gay marriage; they could not, however, overturn a statute defining marriage as between a man and a woman without also holding that marriage is not necessarily between a man and a woman. From the point of view of gay-marriage proponents, the court would be caught between the Scylla of upholding the traditional definition of marriage and the Charybdis of provoking an enormous popular backlash by rejecting that traditional definition.
Constitutional lawyers might recall at this point that recent Supreme Court decisions have purported to limit Congress’s Fourteenth Amendment enforcement powers. In Boerne v. City of Flores, for example, the court held that Congress cannot protect Fourteenth Amendment rights in any way that it pleases. On the contrary, a majority of the justices held that there must be “congruence and proportionality between the injury to be prevented and the means adopted to that end.” Thus in Boerne, the court struck down as applied to the states the bipartisan Religious Freedom Restoration Act (RFRA), which protected the right of free exercise of religion more strongly than the court would have protected it.
In contrast to RFRA, however, a statute that does nothing other than define marriage to be what it really is does not violate the court’s “congruence and proportionality” test. A statute that simply underscores the correct definition of marriage is, well, by definition perfectly tailored to prevent the injury caused by false definitions of marriage. The justices might struggle to get around this argument, but to do so they would have to ignore or set aside their previous decisions.
Finally, it could be objected that the court might just roll the dice and impose gay marriage nationally. For opponents of same-sex marriage, however, this represents not a risk but an opportunity. Strategically, gay-marriage opponents’ only hope is to harness the potential popular backlash caused by the courts imposing it too quickly. If, on the other hand, the courts were forced to choose tomorrow between imposing gay marriage nationally and upholding traditional marriage, gay-marriage opponents would face a win-win situation: They would either stop gay marriage outright, or else they would generate enough political momentum to strike back at the courts.
Gay marriage opponents need not despair. The people are on their side. All they need is the right strategy.
Austin Bramwell is a lawyer in New York City.