USA Today (Society for the Advancement of Education): Why we need a federal marriage amendment

"We must draw a line in the sand and preserve marriage once and for all between one man and one woman."

ALTHOUGH FOR DIFFERENT reasons, same-sex marriage advocates and some states' rights proponents oppose amending the Constitution to protect marriage between one man and one woman. While states' rights are of paramount importance, it nevertheless is necessary that the Constitution be amended to protect traditional marriage.

Marriage between one man and one woman is, and always has been, a Federal matter, and the very act of amending the Constitution is all exercise in states' rights. To sanction same-sex marriage, would be to say that there is no relevance to gender, and thus result in the abolition of gender. Indeed, many same-sex and transsexual proponents advocate its abolition, stating that the concept of male and female is an outdated, stereotypic model.

Society never has supported every conceivable combination of human relationships. Utah's battle over polygamy is instructive. In 1862, Congress passed the Moral Act, which prohibited an individual from having more than one spouse, disincorporated the Mormon Church, and restricted its ownership of property.

In Reynolds v. United States, the Supreme Court upheld the Act, stating that polygamy always has been "odious" among the northern and western nations of Europe, and from "the Earliest history of England polygamy has been treated as an offense against society." The Court noted that "it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion."

In 1882, Congress passed the Edmunds Act, prohibiting polygamists from holding political office and disqualifying them from serving on juries. In 1887, Congress passed the Edmunds-Tucker Bill. It required, among other things, wives of polygamous relationships to testify against their husbands. On Oct. 6, 1890, the Mormon Church officially approved a manifesto mandating that it no longer sanction polygamous marriages.

As a condition for admittance to the Union, Congress demanded the inclusion of antipolygamy provisions in the constitutions of Arizona. New Mexico, Oklahoma, and Utah. For all but Oklahoma, the Enabling Acts made clear that the these provisions were "irrevocable." Furthermore, in order to change their laws to allow polygamy, each state would have to persuade the entire country to alter the marriage laws. Idaho adopted the constitutional provision on its own, but the 51st Congress, which admitted Ohio into the Union, found its constitution to be "republican in form and ... in conformity with the Constitution of the United States." To this day, Arizona, Idaho, New Mexico, Oklahoma, and Utah state in their constitutions that polygamy is "forever prohibited."

The Supreme Court has ruled that a juror who has a conscientious belief that polygamy is permissible may be challenged for cause in a trial for polygamy. Anyone who practices polygamy is ineligible to immigrate to the U.S.

If same-sex marriage were sanctioned, it virtually would be impossible to ban polygamy. Moreover, allowing same-sex marriage would likely take society one step closer to legalizing polygamy and polyamory (group marriage). When Tom Green was put on trial for polygamy in Utah in 2001, various articles and editorials appeared in several prominent publications supporting the practice. The American Civil Liberties Union has tried to downplay the idea of a slippery slope between gay marriage and polygamy, defending Green during his trial and declaring its support for the repeal of all "laws prohibiting or penalizing the practice of plural marriage." Steven Clark, director for the Utah ACLU, stated, "Talking to Utah polygamists is like talking to gays and lesbians who really want the right to live their lives."

While states have been permitted to regulate the edges of marriage, such as the ceremonies, dissolution, support, custody and visitation, they never have been allowed to modify its very essence--the legal union of one man and one woman.

Marriage will be national one way or another. Either the courts will dictate marriage policy or the people will. If a constitutional amendment is not enacted, the courts no doubt will alter traditional marriage policy. Last year, four of the seven state court justices in Massachusetts concocted a right to same-sex marriage in that state's constitution. (The original constitution of Massachusetts was drafted by John Adams. The nation's second president and a devout Christian.) Acknowledging that neither the history of the constitution nor the state statutes envisioned same-sex marriage, tour of the justices nevertheless imposed their own will upon the entire state. The citizens of Massachusetts were, therefore, left with no other choice but to overturn this radical decision by a slate constitutional amendment.

On Sept. 21, 1996, Congress passed the Federal Defense of Marriage Act. This law declared that no state or territory is required to recognize a same-sex marriage sanctioned by another state or territory. While designed to ensure that the sovereignty of a state is not overridden by another state's same-sex marriage law, there is no guarantee that this law will be upheld by the courts. Considering the judicial activism of the Massachusetts Supreme Court, we dare not trust the courts to hold sacred the institution of marriage. Considering the mobility and the impact that marriage has on transactions between the states, we would find ourselves broiled for years in endless litigation over whether one state should accept the same-sex marriage sanctioned by a sister state.

Marriage is not something with which we should experiment, and it certainly is not amenable to having same-sex marriage in some states but not in others. Whether imposed judicially or otherwise, marriage, in whatever form, will be national.

The only way for the U.S. citizens to have a voice in the marriage dilemma is to exercise their right under the Constitution to enshrine marriage once and for all as between one man and one woman. To pass an amendment requires a two-thirds majority in the House and Senate. Three-quarters of the states then must ratify the amendment through their legislatures. Actually, the required number of states already has gone on record since 1996 declaring their support for traditional marriage by specifically enacting legislation protecting that institution while expressly banning same-sex unions. Although a number of states amended their constitutions, it is only by the passage of a Federal marriage amendment that the states may protect the will of the people. This controversy clearly is too important to be left to the whim of the courts.

Some contend that government should have nothing to do with marriage, and thus no longer should license it. In this way, official unions could consist of either private religious or secular ceremonial services sans state sanction. While this position might have some appeal on the surface, it fundamentally misunderstands the importance of marriage and its impact on society. The state always has been empowered to protect the health and welfare of its citizens. Thus, there are laws protecting individuals' personal security and property rights. Although the acts are consensual, there are laws regarding prostitution, gambling, and private drug use--because these private acts have public consequences. The same is true of marriage, which is not merely a personal, private act. Children are part of the equation, and, as such, the greater good comes into play.

In The Case for Marriage, Linda Waite and Maggie Gallagher write: "Marriage is not merely a private taste or a private relation; it is an important public good. As marriage weakens, the costs are borne not only by individual children or families but by all of us taxpayers, citizens, and neighbors. We all incur the costs of higher crime, welfare, education, and healthcare expenditures, and in reduced security for our own marriage investments. Simply as a matter of public health alone, to take just one public consequence of marriage's decline, a new campaign to reduce marriage failure is as important as the campaign to reduce smoking."

Listen to the story of Jacki Edwards who summarized her experience of being raised by a lesbian mother: "'We constantly wonder if we will eventually become gay. There is humiliation when other kids see our parents kissing a same-sex lover in front of us. Trust me, it's hard on the children, no matter how much they love their gay parent. The homosexual community may never admit it, but the damage stemming from their actions can be profound."

Over the summer, the Senate voted down a proposal for a Constitutional amendment; the House should vote this month. No matter the outcome of the latter vote, this issue will resurface in Congress later this year.

Sanctioning same-sex marriage would a distinct destabilizing effect on the health, welfare, education, and morals of the country. We should not play Russian roulette with marriage. We must draw a line in the sand and preserve marriage once and for all between one man and one woman.

Mathew D. Staver, president and general counsel for the Liberty Counsel, Orlando, Fla., a national nonprofit litigation, education, and policy organization and vice president of Law & Policy for Liberty University, Lynchburg, Va., is the author of Same-Sex Marriage: Putting Every Household at Risk.