President Bush issued the order, and now his troops have
rallied. In his State of the Union, Bush shocked many pundits and
observers by openly endorsing a federal Constitutional ban on
same-sex marriage. Last week, Senate leaders announced plans to
consider an amendment sponsored by Wayne Allard (R-Colo.):

Marriage in the United States shall consist only of the union of
a man and a woman. Neither this Constitution, nor the constitution
of any state, shall be construed to require that marriage or the
legal incidents thereof be conferred upon any union other than the
union of a man and a woman.

Proponents claim it is in response to the recent developments in
Massachusetts, where "activist judges" forced the state to grant
gay and lesbian couples full marriage rights. While heterosexual
marriage has not yet weakened and crumbled in Massachusetts,
religious and moral conservatives still feel the need to protect
the institution of marriage against further encroachment. If they
have their way, a federal Constitutional amendment will not only
punish people for their lifestyle, but also create a second class
of citizens in a land where all people are equal under the law.

With recent developments in favor of gay marriage, conservatives
have shifted into panic gear. The sudden demand for a federal
amendment ? which cannot be overruled by anything short of another
amendment ? highlights a key concern of those opposed to homosexual
marriage: They fear Massachusetts is not an anomaly, but a
harbinger. At the federal level, the 1996 Defense of Marriage Act
already defines marriage as a union between one man and one woman.
This law ensures that other states do not need to honor
Massachusetts' same-sex marriage license, and exempts the federal
government from providing spousal benefits to homosexual couples
married under one state's laws. However, this has one critical
flaw: it is still subordinate to the Constitution.

In Massachusetts, the High Court used the federal separate but
equal precedent to force the legalization of same-sex marriage.
While this ruling was denounced as judicial activism, the decision
has cast into doubt the future of the national DOMA and a myriad of
similar state laws. Nothing is to stop state courts, and federal
courts for that matter, from striking down these statutes on
Constitutional grounds. If marriage was defined in the
Constitution, however, it would be inherently constitutional ?
"activist judges" could no longer fabricate laws.

Unfortunately, this zeal to amend the Constitution seems
woefully misguided. The beauty of the document lies in its ability
to transcend politics and the whims of an era. It was designed to
survive through time; it was never intended to contain social
policy, which tends to vary with the moral climate of the period.
Furthermore, the Constitution was meant to secure the rights of the
people, not to limit and punish them.

If the judicial system, relying on the Constitution, sees it fit
to strike down the Defense of Marriage legislation, this should not
be interpreted as a sign that the Constitution is flawed or that
judges are exceeding their mandate. Rather, proponents of the
legislation might consider that the laws they support are
themselves problematic. Even though these laws might enjoy wide
support, that does not mean they should be protected by
incorporation into the Constitution.

Ultimately, the Constitution is not a document to be changed or
altered lightly. Social values and beliefs, which are notoriously
unstable, should not be placed in a document which is designed to
withstand the test of time. Any initiative to alter the
Constitution, especially in the name of discrimination, should be
viewed with suspicion. The fact that gays and lesbians are already
isolated from marriage by a variety of questionable laws and acts
is in itself appalling; to insulate these discriminatory laws from
judicial review by a Constitutional change is abhorrent.

Momin can be reached at smomin@umich.edu.