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...amend the Constitution related to marriage by providing the first detailed, synthetic analysis of such previously proposed amendments. This examination reveals 133 previously proposed amendments to the Constitution relating to marriage, consisting primarily of proposals to prohibit interracial marriage, proposals to prohibit polygamy, and proposals to empower Congress to make uniform laws concerning marriage and divorce. By tracing the arguments made in support of these amendments, this article reveals a strong resonance between prior attempts to constitutionalize aspects of the institution of marriage and current proposed amendments. The article also argues that, in hindsight, the previously proposed amendments were not necessary because state and federal legislatures and courts were able to address problems relating to marriage without amending the Constitution and without destabilizing the delicate balance of power between states and the federal government. Against this background, the article concludes that current proposals to amend the Constitution are similarly neither necessary nor wise.
KEYWORDS:
In the middle of July of 2004, the United States Senate debated the following amendment to the United States Constitution introduced by Senator Wayne Allard:
Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any state, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and woman. (1)
President George W. Bush has at various times expressed support for this type of amendment to the Constitution, although he has not specifically endorsed a particular version of the proposed amendment. (2) Earlier this year, attention to the topic of same-sex marriage was heightened due to the prospect that Massachusetts would soon be marrying same-sex couples (3) and to events in various places across the country, most notably, San Francisco, where over four thousand same-sex couples were married, (4) and Multnomah County, Oregon, where approximately three thousand same-sex couples were married. (5) The President's first public endorsement of such a constitutional amendment further increased attention to same-sex marriages and public interest reached an even higher level in May 2004 when Massachusetts began marrying same-sex couples. (6)
Critics of amendments prohibiting same-sex marriage have suggested these proposed amendments are unprecedented. (7) It is certainly true that, if enacted, a constitutional amendment to prohibit same-sex marriage would be unprecedented. However, such proposed amendments are not the first time Congress has considered a constitutional amendment relating to marriage (nor the first time Congress has considered a constitutional amendment that would prohibit same-sex marriage (8)). Through 2001, one hundred and thirty-three amendments directly related to the regulation of marriage have been proposed in Congress. (9) Seventy-seven (10) of these proposed amendments would have given Congress the power (in some cases, the exclusive power (11)) to make uniform laws concerning marriage and/or divorce in the United States. Fifty-five (12) of these proposed amendments would have prohibited polygamy across the country. And three (13) of these amendments would have prohibited marriage between whites and blacks throughout the country. (14)
None of these proposed constitutional amendments have come to a vote in either the House or the Senate and, as a result, none have reached the stage of being considered for ratification by the States (three-fourths of the states are needed to approve an amendment to the Constitution). (15) However, some of these proposed amendments were the subject of hearings and testimony in Congress, (16) reports from Congressional committees, (17) and statements and debates on the floor of Congress.
Proposals concerning marriage do not make up a significant percentage of attempts to amend the Constitution. Between 1789 and 2001, there have been well over eleven thousand attempts to amend the Constitution, (18) of which twenty-seven of these amendments have been ratified by the states (19) and an additional five more have been approved by two-thirds of both houses of Congress but not ratified by the states. (20) What the proposed amendments concerning marriage lack in number, they make up for in relevance to present attempts to amend the Constitution to prohibit same-sex marriages. Current proposals to amend the Constitution should not be examined in a vacuum. Prior attempts to amend the Constitution provide both a historical and theoretical context for considering recently proposed amendments prohibiting same-sex marriage, especially since amending the Constitution is serious business, as both advocates and opponents of amending the Constitution regarding same-sex marriage claim to agree. (21)
This Article examines the proposed amendments prohibiting same-sex marriage against the history of attempts to amend the Constitution related to marriage. In particular, this Article provides the first detailed, synthetic analysis of previously proposed amendments about marriage. By tracing the arguments made in support of these amendments and comparing them to arguments made for amendments about same-sex marriage, this Article reveals a dramatic resonance between prior proposals about marriage and current proposals about same-sex marriage. This Article also suggests that, in hindsight, the previously proposed amendments were ill-advised and unnecessary. State and federal legislatures and courts were able to address problems relating to marriage without amending the Constitution and without destabilizing the balance of power between states and the federal government. Against this background, this Article concludes that current proposals to amend the Constitution are similarly neither necessary nor wise. While the principal focus of this Article is descriptive and collective, its conclusion is somewhat normative insofar as the commonalities that emerge between past and current attempts to amend the Constitution counsel against passing an amendment to prohibit same-sex marriage.
Part I of this Article explains why advocates of some proposals for regulating marriage at the national level believe it necessary to advance their proposals by attempting to amend the Constitution. They chose this particular strategy in part because of the view that family law is state law. Although the justifications supporting this view have been called into question, this view has been widely embraced and is accepted by advocates (and opponents) of constitutional amendments relating to marriage. Part II surveys the subject matter of the various proposed amendments to the Constitution and describes the historical contexts in which they were proposed. Part III considers the arguments that have been made for these proposed amendments and shows the connections among these different proposals and the arguments for them. Part IV reviews the recent attempts to amend the Constitution to prohibit same-sex marriages and shows how the arguments for the proposed amendments parallel arguments made in favor of prior attempts to amend the Constitution about marriage. This shows how present attempts to amend the Constitution to prohibit same-sex marriage are cut from the same cloth as previous attempts to amend the Constitution related to marriage. Part V concludes with some observations about what lessons can be learned from the history of previous attempts to amend the United States Constitution concerning marriage, noting particularly that, in hindsight, constitutional amendments were not necessary to protect the country or the institution of marriage. Rather, state and federal legislatures and courts have adequately dealt with various difficulties facing the institution of marriage. With respect to the subjects of each of the three types of proposed amendments concerning marriage, a national consensus was reached relating to the perceived problems without amending the Constitution. Further, the conclusion notes that attempts to amend the Constitution about marriage have been hindered in part by concerns about federalism. In the past, Congress was wise to avoid amending the Constitution and thereby to avoid permanently shifting the balance of power between states and the national government in the area of family law. Congress would be wise to avoid doing so now.
Two interesting and important questions relating to family law and civil rights are whether same-sex couples have a fundamental right to marry (22) and whether prohibiting same-sex couples from marrying is unconstitutional because it constitutes discrimination--either on the basis of sex (23) or on the basis of sexual orientation. (24) Although courts, executives, legislators, activists, and scholars are weighing in on these questions with increasing frequency, this article does not take a position on the constitutionality of prohibiting same-sex couples from marrying or on the public policy issues relating to legalizing same-sex marriages or, instead (or additionally), giving legal recognition and benefits to same-sex couples by creating civil unions (25) or domestic partnerships. (26) Rather, this article is narrower in that it focuses on the history of attempts to amend the United States Constitution relating to marriage because of its relevance to current (27) attempts to amend the Constitution to prohibit same-sex marriages. One can be opposed to such proposed amendments without accepting any of the arguments for the legal recognition of same-sex marriage. (28) This article steers clear of the arguments for the legal recognition of same-sex relationships in order to focus on what previously proposed constitutional amendments tell us about the current proposed amendments regarding same-sex marriages.
I. Marriage Law as State Law
Advocates for nationwide changes to marriage laws typically consider amending the Constitution in part because of the widely-accepted view that, in the United States, for the most part, family law is state law. (29) The Supreme Court has said that "domestic relations [is] an area that has long been regarded as a virtually exclusive province of the States" (30) and that "the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States." (31) The Court has justified this view in various ways. In particular, the Court has appealed to the Tenth Amendment, (32) saying that:
the power to make rules to establish, protect, and strengthen family life ... is committed by the Constitution of the United States.... to the legislature of [each] State. Absent a specific constitutional guarantee, it is for that legislature, not ... this Court, to select from among possible laws. (33)
In other contexts, as Jill Hasday has shown, the Court has just asserted that family law is state law and justified this by appeal to history. (34)
However it is justified, the view that family law is state law is rarely disputed by advocates and legislators. No wonder, then, that many of those concerned about the institution of marriage have proposed amendments to the Constitution instead of proposing federal laws. Although the process of passing a law is much easier (it just requires a majority of both the House and the Senate and the President's approval [or, in case of a presidential veto, two-thirds of both the House and the Senate], while passing an amendment requires approval of two-thirds of both the House and the Senate and two-thirds of the states), a law may be found unconstitutional. Advocates of federal marriage laws are worried that such laws would be in tension with the thesis that family law is state law and, for this reason, be found unconstitutional. Reaching marriage laws by amending the Constitution sidesteps this tension.
The history of the federal government's involvement in family law is, however, much more complicated than the Supreme Court and others would have us believe. (35) The Federal government has regulated family law in a host of ways, including, for example, family law related to slavery and to the freed slaves during the Reconstruction Era, (36) family law in the District of Columbia and the Territories, (37) family law in the context of welfare and social security, (38) taxes, (39) child custody and support, (40) and in the context of inter-state recognition of same-sex marriages. (41) In fact, under federal law, there are well over a thousand benefits, rights or privileges associated with marriage. (42) Further, the Supreme Court has intervened with state regulation of marriage on several occasions. (43)
Although Congress and the federal courts are involved in family law in various ways, the idea that family law is state law has survived. The basic idea is that each state has the power to determine who can marry within its borders and what benefits, rights, duties and obligations are associated with marriage. This basic idea is clearly wrong insofar as the Constitution limits what states can do with respect to marriage laws. Further, the federal government and the federal courts have not as "scrupulously refrained from interfering with state answers to domestic relations questions" (44) as typically claimed. Despite these qualifications, the federal government and the federal courts have, in many contexts and to a great extent, "le[ft] the States free to experiment with various remedies [which] has produced novel approaches and promising progress" (45) in relation to marriage.
The approach to family law that gives the states considerable latitude with respect to family law is supported by three related considerations. First, there are differences among the states regarding social norms and social practices relating to families. These differences may justify different laws for different states. Second, the states are useful laboratories for trying different ways of dealing with social situations, (46) especially given the complicated nature of family law and the delicate balance between state interests and family privacy. These two considerations combine to support a form of moral pluralism about how states should structure familial relations. As Justice Blackmun said in his now vindicated (47) dissent in Bowers v. Hardwick, "[T]here may be many 'right' ways of conducting [intimate] relationships, and ... much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds." (48)
Even if marriage should be left to the states, the power of states to control access to marriage and to determine the terms of marriage is constrained by the U.S. Constitution. In a line of cases, starting with Loving v. Virginia, the Supreme Court has affirmed the existence of a fundamental right to marry arising from the Due Process Clause of the Fourteenth Amendment. (49) The existence of a fundamental right to marry does not, however, entail that any restriction on the right to marry violates the Constitution. The Court has described the limitations imposed by the Due Process Clause as follows:
By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed. (50)
Although various restrictions on the right to marry have been held unconstitutional, (51) federal courts have upheld some restrictions on this fundamental right, for example, restrictions on the number of people a person can be married to at the same time, (52) the sex of the people a person can marry, (53) restrictions on marriages by minors, (54) and restrictions on prison guards marrying inmates. (55) State courts have also upheld restrictions on marriage including prohibitions on incestuous marriages, (56) prohibitions on polygamous marriages, (57) prohibitions on getting married without being tested for venereal diseases, (58) and prohibitions on same-sex marriages. (59) In general, restrictions on the fundamental right to marry will be upheld as satisfying due process if they can be justified by appeal to a compelling state interest. In the words of the Supreme Court, "[w]hen a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests." (60)
Restrictions on marriage must also satisfy the Equal Protection Clause. The bulk of the Supreme Court's opinion in Loving v. Virginia relied on and articulated the argument that anti-miscegenation laws made use of racial classifications in a prohibited manner. (61) Even though there was a sense in which Virginia's law treated whites and blacks equally (neither could marry outside of their race and both could marry within their race), (62) the Supreme Court held that the mere equality of laws was not enough to pass constitutional muster. (63) The Court held that Virginia's prohibition on interracial marriages violated equal protection because its underlying purpose was the perpetuation of white supremacy. (64) Equal protection arguments have also been made against laws that prohibit same-sex marriage. Various courts have rejected such arguments, (65) but several state courts have embraced arguments for the recognition of same-sex relationships based on the equal protection provisions of state constitutions, not the United States Constitution. (66)
Accepting, often explicitly, that family law is state law and that the United States Constitution provides only limited constraints on what states can do in the context of marriage and family law, advocates of nationalizing some or all aspects of marriage law have proposed amendments to the Constitution. Sometimes, advocates of nationalized marriage law have adopted a two-pronged approach for achieving their goals: in addition to trying to amend the Constitution, they have also tried to get the various states to pass uniform laws regarding family law (67) or they have tried to get Congress to pass a law that attempted to accomplish the desired goal either without amending the Constitution (68) or in tandem with amending the Constitution. (69) In any event, discussions of the various proposed amendments to the Constitution that relate to marriage have taken place against the mostly unquestioned acceptance of the idea that the Constitution requires that family law is state law. Having considered why advocates of federal marriage laws propose constitutional amendments, I turn to the historical context of the previously proposed amendments to the Constitution related to marriage.
II. The Historical Background of the Proposed Constitutional Amendments
As mentioned above, one hundred and thirty-three proposed amendments to the United States Constitution concerning marriage have been proposed before 2002. These proposed amendments divide into three main clusters: amendments that would have prohibited marriages between whites and non-whites (the race amendments); amendments that would have prohibited marriage to--and typically marriage-like cohabitation with--more than one person at a time (what I shall call the polygamy amendments); and amendments that would have given Congress the power to pass uniform marriage and/or divorce laws (what I shall call the jurisdictional amendments). In the three sub-parts that follow, I discuss the text and context of these three types of amendments in the order that they were first proposed. I then show how the three types of amendments are interconnected in various ways. In particular, I discuss some proposed amendments that address more than one of these subjects, for example, an amendment that gives Congress the power to pass uniform marriage and divorce laws and would also prohibit polygamy. I begin with some brief background observations.
The first ten amendments to the United States Constitution--known collectively as the Bill of Rights--were proposed shortly after the Constitution was adopted and were ratified just over two years later. (70) The next two amendments to the Constitution were proposed and ratified during the ten years starting in 1794. (71) The next three amendments--known collectively as the Reconstruction Amendments--were passed between 1865 and 1870 after the Civil War. The Thirteenth Amendment made slavery and "involuntary servitude" illegal (72) and the Fifteenth Amendment prohibited race discrimination concerning access to voting. (73) The most complicated of the Reconstruction Amendments was the Fourteenth Amendment, which said, in part:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (74)
In the aftermath of the passage of the Reconstruction Amendments, the number of constitutional amendments that were proposed increased and their scope expanded, (75) in part because, as Nancy Cott has aptly observed, "[v]ast changes could be envisioned as the union reconstituted itself politically." (76) Even after Reconstruction, interest in changing the Constitution did not remain constant (see Table 1, below). For example, after the Eighteenth Amendment, (77) which prohibited the manufacture, sale or transportation of alcohol, was repealed in 1933, (78) attempts to amend the Constitution were scaled back. (79)
Just as the frequency and types of proposals to amend the Constitution changed over time, (80) so too did proposals to amend the Constitution related to marriage. The first proposals to amend the Constitution concerning marriage came in the 1870's against the backdrop of Reconstruction. (81) During each of the next five decades, more than twenty constitutional amendments relating to marriage were proposed. Table 1 shows how many amendments relating to marriage were proposed in each decade and, for comparison, the number of amendments proposed and approved in that decade, regardless of subject.
As this table indicates, the vast majority of the constitutional amendments concerning marriage were proposed between Reconstruction and the repeal of prohibition. This historical context is the backdrop for the following discussion of the types of proposed constitutional amendments regarding marriage.
A. The Race Amendments
State laws prohibiting interracial marriage have a long history in the United States. Although most colonies prohibited interracial marriage and most states at some time had laws prohibiting interracial marriages, (82) interracial intimate relationships have persisted throughout the history of the United States. (83) From 1887 until 1948, thirty states (out of forty-eight) had laws prohibiting interracial marriage. (84)
When Congress was discussing what eventually became the Fourteenth Amendment, many congressmen as well as President Andrew Johnson expressed concerns that this amendment would have the effect of depriving the states of the power to prohibit interracial marriages. (85) Proponents of the Fourteenth Amendment argued that the amendment would not render unconstitutional a law that prohibited interracial marriage so long as the law treated a black person who married or tried to marry a white person the same way that it treated a white person who married or tried to marry a black person. (86) Once the amendment passed, some people were still worried about its effect on anti-miscegenation laws. Precisely this worry led Congressman Andrew King to propose the first constitutional amendment that directly addressed marriage. (87) This proposed amendment would have prohibited interracial marriage throughout the United States. (88) In the preamble to his proposed amendment, Congressman King justified it by saying that "the second clause of the first section of the fourteenth amendment of the Constitution deprives the States of the power to prohibit by law the intermarriage of the white and colored races." (89)
The legislative history of the Fourteenth Amendment suggests that King's interpretation of that amendment was wrong at the time. (90) Although shortly after the ratification of this amendment, two state supreme courts held that the Fourteenth Amendment had the effect of overturning state laws prohibiting interracial marriage, (91) one of those courts reversed itself on this issue five years later, (92) the state legislature of the other state reinstated the prohibition of interracial marriages two decades later, (93) and every other court that considered this issue before 1948 agreed that the Fourteenth Amendment allowed such prohibitions so long as whites and blacks were both equally prohibited from intermarrying. (94) Congressman King's primary argument for a constitutional amendment prohibiting interracial marriages was undercut by the accepted interpretation of the Fourteenth Amendment whereby it did not affect the constitutionality of state laws against interracial marriage. This settled interpretation of the Fourteenth Amendment did not, however, put an end to further attempts to amend the Constitution to prohibit interracial marriage.
Two additional amendments to the Constitution that would have prohibited interracial marriage were proposed, respectively in 1912 and 1928. In 1912, in response to the high profile marriage of Jack Johnson, an African-American boxer, to a white woman in Chicago, (95) Congressman Seaborn Roddenbery proposed a constitutional amendment concerning interracial marriage. Like King's 1871 amendment, Roddenbery's amendment would have prohibited interracial marriage throughout the nation. Roddenbery's amendment went further, defining "negroes and persons of color" as people with "any trace of African or Negro blood." (96) Despite an impassioned plea on behalf of his proposed amendment, (97) the resolution died in the House Judiciary Committee. A similar fate befell Senator Blease's 1928 proposed constitutional amendment which went beyond the two earlier proposals in that it not only prohibited interracial marriages, it also required Congress to set a punishment for a person who either attempted to marry a person of a different race or attempted to perform such a marriage. (98)
In 1948, the California Supreme Court, in the landmark case of Perez v. Lippold, overturned that state's anti-miscegenation law, in part on the basis of the Equal Protection Clause of the Fourteenth Amendment. (99) The California Court also rejected the argument that anti-miscegenation laws treated blacks and whites equally, arguing as follows:
It has been said that a[n anti-miscegenation] statute ... does not discriminate against any racial group, since it applies alike to all persons whether Caucasian, Negro, or members of any other race. The decisive question, however, is not whether different races, each considered as a group, are equally treated. The right to marry is the right of individuals, not of racial groups.... Since the essence of the right to marry is freedom to join in marriage with the person of one's choice, a segregation statute for marriage necessarily impairs the right to marry. 100
Between 1948 (the year Perez was decided) and 1967, eleven states repealed their prohibitions on interracial marriages. (101) Then, in 1967, the Supreme Court decided Loving v. Virginia, (102) which held that laws prohibiting interracial marriage were unconstitutional on both equal protection (103) and due process grounds. (104) Although Loving had the effect of preventing states from enforcing their bans on interracial marriage, some states did not repeal these anti-miscegenation laws until decades later. (105)
B. The Polygamy Amendments
Between 1879 and 1924, fifty-five constitutional amendments concerning polygamy were proposed. A typical polygamy amendment was House Joint Resolution 50 proposed in 1883, which said, "Polygamy, being incompatible with our civilization, is forever prohibited in the United States and all places under its jurisdiction." (106) Several of these amendments concerning polygamy also disenfranchised polygamists and prohibited them from holding national elected office. (107) These amendments, although directed at polygamy generally were motivated in part by anti-Mormon sentiments. For this reason, I offer a brief legal and cultural history of anti-Mormon and anti-polygamy attitudes as they relate to attempts to amend the Constitution to prohibit polygamy. (108)
Joseph Smith founded the Church of Jesus Christ of Latter-day Saints in 1830 in Fayette, New York. Due to emerging public sentiment against them, the members of Smith's church, also known as Mormons, soon began a westward migration. In 1843, while the Mormons were primarily based in Missouri, Illinois and Ohio, Smith had what he described as a revelation from God--which became known as the "Revelation on Celestial Marriage"--that Mormon men should have multiple wives. Although this revelation did not become official church doctrine for several years, even before it did, Mormonism was commonly associated with polygamy. This association with polygamy was in part responsible for the spread of strong anti-Mormon sentiments.
In 1844, Joseph Smith was arrested in Illinois. While he was under the protection of state law enforcement officials, he was murdered by an anti-Mormon mob. This, in part, hastened the Mormons' continued move westward. Many of the Mormons finally settled in the area that eventually became Utah. They soon became the most powerful political force in region. In 1850, the...
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