Two weeks ago Republican presidential hopeful Rick Santorum opened his mouth and promptly ended his already slim hopes of winning the presidency. He did so by reluctantly implying that he would support a federal marriage amendment that would decertify existing same-sex marriages.
“If we have a — if the Constitution says marriage is between a man and a woman, then marriage is between a man and a woman. And — and, therefore, that’s what the Constitution would say.”
While Mr. Santorum’s opinion exhibits logical consistency, it also embraces a dubious mode of constitutional change: an after-the-fact amendment. An ordinary civil law, made and applied ex-post facto, might not be unconstitutional, but it would be unsettling. A constitutional amendment of this ilk would be stillborn.
Retroactive marriage amendments aside, it is also disturbing that socially conservative politicians regularly offer their hearty endorsement of a federal marriage amendment, but often do so without providing a meaningful assessment of the political hurdles such an amendment would face. The fact of the matter is, the US Constitution was designed to avoid the addition of controversial amendments.
Over the last 220 years, the Constitution has only been amended one way. This process first requires 66% of Congress to vote in favor of the amendment, and then 75% of the states to subsequently agree. The practical reality is simple: a federal marriage amendment is unlikely to navigate Congress successfully.
If, for example, socially conservative Republicans controlled 60% of the seats in the US House of Representatives (they haven’t done so in over 80 years), they would still need the support of 29 obliging Democrats before a marriage amendment could pass. Senate Republicans would face a similar challenge. Assuming conservative Republicans could find 60 votes, the support of seven Democrat colleagues would still be necessary. Even if the proposed amendment managed to pass Congress, state-level approval would be improbable.
Since the ratification threshold is 38 states, only 12 states can dissent. Unfortunately for social conservatives, the math paints a bleak picture. A marriage amendment could logically be expected to fall in the six states that already issue same-sex marriage licenses (Connecticut, Iowa, Massachusetts, Hampshire, New York, Vermont). Failure would also be probable in reliably liberal states such as Hawaii, California, Delaware, and Illinois. In addition, conservatives could only afford to lose two of the following ten battleground states – Colorado, Maine, Maryland, Minnesota, New Jersey, Nevada, Oregon, Rhode Island, Washington, Wisconsin.
Optimistic social conservatives would correctly note that four of the ten states have constitutional amendments that define marriage as a one-man one-woman relationship. Yet the unvarnished truth presents a different picture. Seven of the same ten states also recognize same-sex civil unions or domestic partnerships. The conclusion is unavoidable: the political culture of the states in question would stymie a federal marriage amendment.
Therefore, absent a new strategy, social conservatives are essentially waiting for the Supreme Court to settle the question. Regrettably, the logic for nation-wide civil unions already exists.
In 2003, social conservatives were horrified when the Supreme Court concluded that homosexual individuals had a constitutional right to engage in intimate relationships. The decision’s swing vote, Justice Sandra Day O’Connor, argued that the 14th amendment’s promise of “equal protection” under the law required each state to apply the same rules to all couples. If this rational were applied to the marriage debate, the Supreme Court would demand that every state officially sanction same-sex unions.
Until it does, well-meaning conservatives like Rick Santorum will undoubtedly push for a political double bogey – a retroactive marriage amendment. Such an amendment would not only weaken the Rule of Law by invalidating legal marriages after the fact, but it would also discredit conservative ideas among younger voters.
The irony is, a federal marriage amendment would do nothing to strengthen the critical institution of marriage.