The President, Gay Marriage, and the Constitution: A Tangled Web
President Bush's support for a Federal Marriage Amendment to require that marriage in the United States be limited to a man and a woman is not presented with sufficient clarity about the underlying arguments. On examination, the proposal is defective in reasoning and radical in constitutional import. The implicit argument has several components. The first is that the constitutional principles, including equal protection, applied by an independent judiciary, will inevitably lead to decisions mandating gay marriage. This constitutional theory is cloaked in language about "activist judges" but betrays a fear that equal protection principles would vindicate gay claims to equal treatment. A variant on this reading of the implications of our constitutional process is institutional anxiety: a claim that judges will rush social change before the country is ready to absorb it. Another separate component of the President's argument, and one that his religious base embraces, is gender ideology: the view that heterosexual marriage is critical to our core ideology as a nation. The defects in Bush's implicit arguments are several and serious. As to equal protection: the solution of making an appeal to majoritarian bias to excuse the majority from applying the general principle to a minority, without otherwise revising constitutional equal protection, is at odds with our constitutional commitment to use process to discipline majorities. It proposes to opt out of constitutional protections for gay people while preserving them unaffected for all others. The threads of the institutional anxiety argument are not persuasive: Full Faith and Credit does not require states to recognize marriages that are against their strong public policy. In addition, there is no basis to anticipate that the Supreme Court is poised to order nation-wide same-sex marriage on the basis of general constitutional precepts. It is far more likely that the court will apply prudential principles to avoid pressing the pedal on a court-controlled accelerator of social change. The institutional anxiety argument is both empirically weak and institutionally radical. Finally, the gender ideology argument is a proposal to incorporate a religious-influenced, retrograde theory of gender into the constitution. If fully explicated, traditional gender as a constitutional precept would be soundly rejected by the American people as counter both to women's interests and to a constitutional tradition principally concerned with the structure of government and not with controversial claims about the particulars of human nature.
Mae Kuykendall, The President, Gay Marriage, and the Constitution: A Tangled Web, 13 Widener L.J. 799 (2003-2004).