ASK JOHN CORNYN when the Senate might again consider the Federal Marriage Amendment, known as the FMA, and he has a ready answer: “It’s probably going to take an adverse court decision.” By that, Texas’ junior senator means a decision adverse to marriage as traditionally defined–as consisting only of the union of a man and a woman.
Such a decision, he said in an interview, would probably move some of his hesitating colleagues to vote for the amendment, which would write into the Constitution the traditional definition. Under the FMA, marriage could nowhere be redefined as it has been in Massachusetts, by order of its Supreme Judicial Court, as the union of any two people.
Since the original Constitution was ratified, Congress has proposed 33 amendments, of which the states have ratified all but six. Congress, those numbers suggest, has long been reluctant to propose an amendment–proposal requiring two-thirds majorities in both houses–unless it has substantial public support. And regarding the FMA, the recent failed Senate vote fairly reflects the sentiment of a public that, to judge by polling data, favors marriage as traditionally defined, but is not yet prepared to constitutionalize that understanding.
What is most notable about the FMA is its relationship not only to what courts have already done to traditional marriage, but also to what they might do. But for several “adverse court decisions,” especially the one from Massachusetts, there would be no marriage amendment at all. But, paradoxically, as Cornyn recognizes, the amendment would seem to have no prospect unless there are additional adverse court decisions that begin moving members of Congress into the “yes” column.
The FMA represents a new kind of constitutional amendment. At least five times we have amended the Constitution to reverse a Supreme Court decision. (See the 11th, 13th, 14th, 16th, and 26th amendments.) The FMA, however, proposes that we not wait for an actual Supreme Court decision redefining marriage for the nation as the union of any two people, or lower court decisions accomplishing the same, but that we act to prevent such a judicially demanded outcome. For that reason, Sen. Cornyn calls the FMA an “anticipatory” amendment, though “prophylactic” might be the more accurate adjective.
The cases on behalf of same-sex marriage now being litigated in federal and state courts total three dozen. Cornyn identifies two kinds of adverse decisions that would “get people’s attention.” One would declare unconstitutional the federal Defense of Marriage Act, which, passed by huge majorities in 1996, defines marriage for purposes of federal law as the union of a man and a woman and seeks to prevent the interstate transmission of same-sex marriage. Cases are pending in federal courts in Washington and Florida.
The other would declare unconstitutional some state’s definition of marriage as the union of a man and a woman. A federal case against Nebraska, in which the judge already has telegraphed his opposition to Nebraska, may soon be decided.
Advocates pressing for those outcomes are citing the Supreme Court’s 2003 decision in Lawrence vs. Texas, arguing that the right to sexual liberty posited in that case should encompass the right to marry a person of either sex. Lawrence, says Cornyn, a former Texas Supreme Court justice, is “the big problem,” by which he means that its doctrine points inevitably to the judicial redefinition of marriage.
Some who favor traditional marriage but not the FMA say that the definition of marriage should be “left to the states.” Ideally, it should be. That’s unrealistic, argues Sen. Cornyn, because Lawrence and its probable employment by judges make it unlikely that the states can maintain the traditional definition of marriage if they desire.
Cornyn’s position appeals to those disinclined to think that the courts can restrain themselves from embracing same-sex marriage. Meanwhile, the question for those who support the traditional definition of marriage but are not yet willing to support the FMA, or something like it, is this: How many more “adverse” court decisions will it take before the case for an amendment becomes compelling?
Terry Eastland is publisher of The Weekly Standard. This column originally appeared in the Dallas Morning News.
