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Powerful reasons have been offered for and against President George W. Bush’s recent call for a constitutional amendment “defining and protecting marriage as a union of man and woman as husband and wife.” It is difficult to deny the force of his argument about the need to preserve marriage as a social institution. But it is equally difficult to deny the power of the argument that the constitutional amendment he seeks discriminates against homosexuals. Separate from the profound substantive questions sparked by the proposal is an equally significant procedural question that has been largely overlooked: whether now is the time to raise these questions via the amendment process. I don’t think it is. The president said 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 state 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 officials start issuing marriage licenses to such couples. California law forbids the mayor of San Francisco from doing what he did, and Gov. Arnold Schwarzenegger instructed the state attorney general to sue the mayor to force him to stop. Federal intervention � especially by constitutional amendment � seems unnecessary. The more interesting case is Massachusetts. Although officials there apparently still are debating whether to amend their constitution to reverse the high court decision, such an amendment seems unlikely to pass (or at least become law) before the court order takes effect. History makes plain there is precedent for the call for a U.S. constitutional amendment to reverse judicial rulings. Six of the 27 amendments were responses to decisions 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), which voided a congressional attempt to lower the minimum voting age in state and local elections to 18. Significantly, though, these decisions had been rendered by the U.S. Supreme Court. The nation’s highest court has not yet ruled on same-sex marriage; 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 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 polity’s survival. The process is, in short, a peaceful substitute for revolution. Abraham Lincoln 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 disruptive it can be to amend the Constitution. That’s why they made the process difficult. James Madison, the Constitution’s principal architect, 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 plan to outlaw same-sex marriage is that it ignores the threat to stability that might result if the nation bypasses the judicial process for the amendment process. For the good of the nation, the president should allow the issue to work its way to the nation’s highest Court. Deciding difficult questions of personal rights is what the Supreme Court is charged by the Constitution with doing. If the president disagrees with the Court’s ultimate decision, he can invoke the amendment process to try to reverse it. To fail to wait is to fail to understand the amendment process itself. 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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