You can be for same-sex marriage or against it. You can say we all have an equal right under the law to marry whomever we please regardless of gender, or that government should not intrude on thousands of years of tradition.
That’s why we debate these issues in our constitutional republic. But it might be time to go beyond the merits of the issue itself and put it before the American people.
Last year, the Supreme Court of the United States (SCOTUS) ruled by a 5-4 margin in the Obergefell v. Hodges decision that the Constitution guarantees a right to same-sex marriage. Supposedly that means now it is the law of the land — that gay marriage must be recognized nationally.
As Alabama Supreme Court Justice Roy Moore has learned, not abiding by the ruling has come with consequences. Moore instructed probate judges to disregard the SCOTUS ruling. That led to a suspension and his possible removal from office pending a trial.
In the meantime, it hasn’t been a net positive for the state’s reputation. Even if you agree with the principle for which he took his actions, it undermines the rule of law. Long story short: there is a better way to go about this.
If our society has indeed accepted gay marriage (at least that’s the way it’s framed in our media, school systems and pop culture), why not take a shot at a constitutional amendment guaranteeing the right of marriage for same-sex couples?
For the proponents of gay marriage, it would assure that a future high court wouldn’t come along and outlaw these unions.
It’s not that far-fetched that gay marriage could come under fire again. We’re in a unique time. Birthrates are falling below the replacement fertility rate in every industrialized nation and globally there is a push by some governments to encourage couples to reproduce in order to prevent certain demographic shifts.
Russian President Vladimir Putin has offered perks, including $11,000 to mothers who have more than one child. He also has offered a chance to win “money, cars, refrigerators and other prizes” for those families reproducing, according to a 2007 Associated Press story.
At the same time, Putin’s Russia has been hostile to the gay lifestyle, equating it to pedophilia and going as far as saying the nation needs to “cleanse” itself of homosexuality if it is serious about increasing its birthrate.
That’s not to say anything of this nature is coming to the U.S. anytime soon. But as we see it occurring in other parts of the world, why take a chance?
For those on the opposite side of the issue, putting a constitutional amendment out there would at least put the issue through a democratic process. Rather than have the Supreme Court make it the law and have its narrow 5-4 decision validated by the elites in the press, academia and Hollywood, we would have a better gauge on how America really feels and not have to base it on how we’re told to feel about it.
Many argue that same-sex marriage should be left up to the states. Through the constitutional amendment process, the states would play a role in deciding whether or not it should be legal.
There are two ways to propose an amendment to the U.S. Constitution. Congress by a two-thirds supermajority vote can propose an amendment. That proposal does not require the signature of the president and goes directly to the states. The other, which has never been done, is two-thirds of the state legislatures ask Congress to call a national convention to propose amendments.
The process of ratification is how the states can give it an up-or-down vote. Either three-fourths of the state legislatures can approve it or ratifying conventions in three-fourths of the states can.
Amending the Constitution is not the easiest things to accomplish, so even if you are vehemently anti-gay marriage, why not put it to the test? We would find out where our elected leaders stand, assuming the vote they cast reflects the sentiment of their constituents. If the effort does fail, it would cast doubt over the 2015 SCOTUS decision.
Indeed, the issue barely passed muster with the Court last year and one of the reasons seemed to be the Court felt cultural norms have made same-sex marriage more acceptable. A failed constitutional amendment could invalidate that reasoning in future decisions.
Either way, there is still ambiguity about the issue. It remains something we debate — and some demagogue — every election cycle.
We’re not debating whether women or African-Americans have the right to vote. Nor are we debating the prohibition of alcohol or if a poll tax should be levied on voters. Those were all settled by amendments to the Constitution over time.
Therefore, to settle this issue once and for all, the country ought to have the opportunity to consider a same-sex marriage amendment to the Constitution and put the argument behind us, rather than rely on a court decision alone.