By Justin Deabler
Originally published on Advocate.com March 02 2004 12:00 AM ET
The U.S. Constitution is renowned for its unflinching, perfect brevity. It is one of the shortest such documents of any nation, focusing on the protections of people’s liberty and putting limits on the power of the state. Through our history its amendments have been chosen to expand freedoms and destroy class-based distinctions and deprivations. On the one occasion when our country deviated from this pattern--by restricting a freedom of its citizens via the prohibition constitutional amendment, which banned alcohol—the experiment proved terribly wrong and we took it back.
Now we have the far right proposing a federal marriage amendment to the Constitution that would grab equality out of the hands of gays and lesbians. President George W. Bush wholeheartedly supports it. Regrettably, his Administration has chosen to treat our country’s founding charter as the place to fight its culture war and grab as many votes as possible as the presidential election nears. The Administration’s inflammatory “whatever it takes” stance to push through this amendment will trash our country’s most cherished document and defy all American legal and historical precedent. Our Constitution has worked for more than two centuries because it has been a living institution that’s remained above the fray.
The potential Federal Marriage Amendment would take away so much from gays and lesbians--even those who aren’t wanting to tie the knot. This amendment proposed in Congress would not only deny marriage to same-sex couples but could also preclude any state legislature from ever voting to pass domestic partnerships, civil unions, or marriage laws. Under the Federal Marriage Amendment, courts could be barred from enforcing the legal protections that a legislature provides through civil unions or domestic-partnership laws. Such legal incidents include hospital visitation rights, child support, health care benefits, and inheritance rights; the amendment would also prevent all forms of civil marriage and civil unions for such couples.
Something is terribly wrong.
Past constitutional amendments reveal indisputably that the document is meant to limit the powers of government against its citizens and to further the freedom of all Americans. Indeed, the Bill of Rights, which contains the most familiar and iconic of American freedoms—freedom of speech and assembly, free exercise of religion, freedom from unreasonable searches and seizures, from cruel and unusual punishment, and the right to a speedy trial by jury—was drafted, without exception, as a list of inalienable rights and limitations upon the state’s powers. This blueprint, devised by our founding fathers at the original constitutional convention, has at its core a vision of liberty increasing throughout our nation’s future.
The amendments passed after the bloodshed of the Civil War provide the purest reasons as to when the Constitution should be amended. The 13th, 14th and 15th amendments abolished slavery, guaranteed equal protection of the law, and banned states from stopping a person from voting due to their race or former status as a slave. The reason to amend the Constitution has never been to restrict the freedoms of a particular group or to single out that group for inferior treatment. Rather, it has always been toward fashioning greater freedom and equality, and the reduction of inferior, class-based treatment. A half century after the Civil War, the 19th Amendment affirmed a woman’s right to vote and banned the state from singling out a particular group, women, for unequal treatment.
On the other hand, prohibition demonstrates how the Constitution fails the country when we write amendments that restrict people’s liberties. The 18th Amendment rose out of the temperance movement, stopping the manufacture, sale, or transport of liquor in the U.S. It was repealed by 1933, only 14 years after ratification. Congress and the nation acknowledged that this brief attempt to codify prevailing social attitudes in the Constitution was wrong–not to mention the folly of extreme growth in state and federal power required to police the amendment.
So why are we trying to do it again in the form of the Federal Marriage Amendment? It goes even further than prohibition, by legalizing a current social attitude about a particular class of people into the Constitution. It condemns that class to inferior treatment under the law. This effort disfigures our nation’s charter and betrays the spirit that has always guided its evolution.
We must fight it with everything we have.