Jewish World Review July 28, 2004 / 10 Menachem-Av, 5764

Terry Eastland

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How many more 'adverse' court decisions will it take before the case for an amendment to protect traditional marriage becomes compelling? | 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 last week, would move some of his hesitating colleagues to vote for the amendment, which would write into the Constitution the traditional definition. Marriage thus could nowhere be redefined as it has been in Massachusetts, by order of its Supreme Judicial Court, as the union of any two people.

Congress has long been reluctant to propose an amendment 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, unless there are additional adverse court decisions, as Mr. Cornyn recognizes, the amendment would seem moribund.

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, but that we act now to prevent such an outcome.

For that reason, Sen. Cornyn calls the FMA an "anticipatory" amendment, though "prophylactic" might be the more accurate adjective. The FMA would "anticipate" not only an adverse decision by the Supreme Court but also adverse decisions by lower federal courts (and state courts). It would anticipate those decisions even as, for the amendment to have any prospect of success, it would need one of those decisions — and probably more than one — to actually be enacted by legislators. That shouldn't be hard to produce: The cases on behalf of same-sex marriage now being litigated in federal and state courts now total three dozen.

Mr. Cornyn identifies two kinds of adverse decisions that would "get people's attention."

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One would declare unconstitutional the federal Defense of Marriage Act, which 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 now pending in federal courts in Washington and Florida.) The other would declare unconstitutional a state's definition of marriage as the union of a man and a woman. (A federal case against Nebraska may soon be decided.)

Advocates now 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 Mr. 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.

Mr. Cornyn's position appeals to those disinclined to think 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?

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JWR contributor Terry Eastland is is publisher of The Weekly Standard.Comment by clicking here.

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© 2004, Terry Eastland