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Powerful reasons have been offered for and against President George W. Bush’s recent call for an amendment to the U.S. Constitution “defining and protecting marriage as a union of man and woman as husband and wife.” For example, it is difficult to deny the force of the president’s argument about the need to preserve marriage as a social institution. But it is equally difficult to deny the power of the principal argument advanced by those who oppose the president’s position: The constitutional amendment he seeks discriminates against homosexuals. Separate and apart from the profound substantive questions sparked by the president’s proposal is an equally significant procedural question that has been largely overlooked; namely, whether now is the time to raise these substantive questions via the amendment process. I don’t think it is. The president emphasized in his statement calling for a constitutional amendment outlawing same-sex marriage that he was concerned about “activist” judges and “defiant” local officials. Of course he was referring to the Supreme Judicial Court of Massachusetts, which recently held that the Massachusetts Constitution requires that same-sex couples be allowed to marry, and to the mayor of San Francisco, who mandated shortly after the Massachusetts decision that San Francisco city officials start issuing marriage licenses to such couples. California state law explicitly forbids the mayor of San Francisco from doing what he did, and the state’s governor, Arnold Schwarzenegger, has instructed the state’s attorney general to sue the mayor to force him to stop. Federal intervention-especially by constitutional amendment-therefore seems unnecessary. The more interesting case is Massachusetts. Although government officials there were, and apparently still are, debating whether to amend their state’s constitution to reverse the Massachusetts high court decision at issue, such an amendment seems unlikely to pass (or at least become law) before the court order takes effect. History makes plain that there is precedent for Bush’s call for a federal constitutional amendment to reverse judicial rulings. Six of the 27 amendments to the U.S. Constitution were responses to judicial decisions that the nation thought were in error. The 11th Amendment reversed Chisholm v. Georgia (1793), which decided that a state could be sued in federal court by a person from another state. The 13th, 14th, and 15th amendments reversed Dred Scott v. Sandford (1857), a decision that relegated blacks to the status of property. The 16th Amendment overruled Pollack v. Farmers’ Loan and Trust Co. (1895), which struck down a federal income tax. Finally, the 26th Amendment was ratified in 1971 to reverse Oregon v. Mitchell (1970), a decision that voided a congressional attempt to lower the minimum voting age in state and local elections to 18. Significantly, though, the court decisions overturned by these amendments had been rendered by the U.S. Supreme Court. The nation’s highest court has not yet ruled on the same-sex marriage question. In fact, the justices reserved the question for future disposition in last term’s landmark gay rights decision, Lawrence v. Texas. Bush’s attempt to pre-empt the judicial process is therefore historically unprecedented and procedurally premature. It is also constitutionally unwise. Judicial process comes first The amendment process is perhaps the most important part of a constitution, because a formal mechanism for change is essential to the very survival of the polity. The amendment process is, in short, a peaceful substitute for revolution. Abraham Lincoln, who understood the purpose of the Constitution better than any statesman since it was written, demonstrated an appreciation of this fact in his first inaugural address. “This country, with its institutions, belongs to the people who inhabit it,” Lincoln remarked. “Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it.” The Framers knew how politically and socially disruptive it can be to amend the Constitution. That’s why they made the process so difficult. James Madison, the principal architect of the Constitution, maintained that the Constitution would be deprived “of that veneration” so essential to political and social stability if the amendment process were too easily-or too frequently-invoked. What’s troubling about Bush’s call for an amendment to the U.S. Constitution outlawing same-sex marriage is, then, that it ignores the threat to political and social stability that might result if the nation bypasses the judicial process for the amendment process. The Supreme Court frequently makes decisions with which people disagree. However, for the good of the nation, the president should allow the question of whether same-sex couples have a constitutional right to marry to work its way to the nation’s highest court. After all, deciding difficult questions of personal rights is what the Supreme Court is charged by the Constitution with doing. If the president disagrees with the decision the court ultimately reaches, he can then invoke the amendment process to try to reverse it. To fail to wait is to fail to understand the amendment process itself. Scott D. Gerber is an assistant professor of law at Ohio Northern University Pettit College of Law. His books include To Secure These Rights (NYU Press).

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