Professor helps draft amendment

The proposed Federal Marriage Amendment, which aims to legally define marriage as an exclusively heterosexual union, moved into the forefront of national political discourse after the Massachusetts Supreme Court ruled to allow gay marriage. President Bush responded in his State of the Union address, saying Americans might have to turn to the "constitutional process" to "defend the sanctity of marriage." The University's most prominent constitutional scholar, Robert George, is one of the draftsmen of the proposed amendment.

Although recent events have brought the issue of same-sex marriage to the fore, this is an issue with which George, who is also the director of the James Madison Program in American Ideals and a teacher of a popular course on constitutional interpretation, has been involved since the mid-1990s.

George's articles on marriage have been published in academic journals and mainstream publications for years. He became involved in the movement for the Federal Marriage Amendment in the mid-1990s, when "it became clear that it was likely that some state or federal courts would move in the direction of redefining marriage," George said.

He was among a group of scholars and activists involved in the Marriage Movement, which convened to consider political strategies in anticipation of what it perceives as judicial activism to redefine marriage.

"One of the strategies that emerged as a leading contender was the idea of a federal constitutional amendment to establish a national definition of marriage as the union of a man and woman," he said.

Additionally, the group wanted to limit the role of the courts in delegating the "benefits and privileges that are available to married families," George said.

"What we proposed was that the benefits of marriage be determined by this constitutional amendment by the state legislatures and not by the courts."

The groundbreaking court action anticipated by George occurred with the Nov. 2003 Massachusetts Supreme Court ruling that same-sex couples are allowed to marry under the state constitution.

If the Federal Marriage Amendment is enacted, the Massachusetts supreme court ruling will be overruled, George said.

"It would do at the national level what the constitutional amendments at the state level did in Alaska and Hawaii to overturn decisions of the state supreme courts," he said. "The federal constitutional amendment would trump any judicial or legislative effort to reverse it."

George said that current same-sex marriages might stand if the amendment passed, but could be subject to litigation.

However, he added, the status of already enacted same-sex marriages would be difficult to predict.

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The amendment would create a national definition of marriage as the union of a man and a woman, "but not forbid civil unions so long as the civil unions were created by the state legislatures and not imposed by the courts," George said.

He pointed out that the term 'civil unions' in the amendment is already a point of contention because of its ambiguity. The debate is about what a 'civil union' is "and how far in the direction of a copy of marriage a civil union could be," he said.

Although the amendment has garnered about a hundred cosponsors in the House of Representatives, George said other constitutional amendments may be introduced because some feel the Federal Marriage Amendment "doesn't go far enough in prohibiting civil unions, they think the amendment is too weak because it would permit the creation of faux marriages under the title of civil unions or domestic partnerships."

To pass into law as an amendment to the constitution, the proposal would need the support of two-thirds of both houses of Congress and the support of 3/4 of the 50 state legislatures.