The right amendment.(Marriage)

In 1998, Hawaii's Supreme Court attempted to foist gay marriage on that state. The voters amended the state constitution to preserve the definition of marriage as the union of a man and a woman. In 2001, gay activists found a more hospitable venue. Vermont's constitution is very hard for voters to amend. So the state courts could force civil unions on the state with little real danger of reversal. At the time, this magazine suggested that it was pretty clear where things were headed. The courts, both state and federal, were going to keep pushing gay marriage and gay marriage lite until they succeeded somewhere. Further legal actions would force the recognition of one state's gay marriages by all the other states. Or federal courts would, at some point, find the ground prepared for the national imposition of gay marriage. Whatever the precise methods, the courts would go as far in the direction of gay marriage as they could get away with. Each discrete step would be something that the public did not favor (and hence could not be enacted democratically) but also did not oppose so vehemently that it would be overturned.

We thought that the proper response to this campaign by legal activists and their judicial accomplices was a constitutional amendment. The Massachusetts high court's decision in favor of gay marriage in November 2003 has reinforced our view.

The public is beginning to see the danger that gay marriage will be brought to them without a vote. A New York Times poll in December found that 55 percent of Americans favor a constitutional amendment to define marriage in the traditional way. That is not a large enough number to ensure passage, but it is a strong one given how new the amendment is in the political debate.

Even among supporters of an amendment, however, there has been considerable disagreement about what precise form it should take. We have defended an amendment that would accomplish three things. First, it would reserve the word "marriage" for the union of one man and one woman: No court or legislature would be able to create "gay marriage."

Second, it would ban the federal or state governments--again, whether directed by a court or a legislature--from granting benefits that are conditioned on non-marital sexual relationships. Legislatures would be free to make a benefit, or civil-union status, available to unmarried persons. But availability must not be limited only to homosexual couples or to cohabiting heterosexuals. Siblings, friends, and roommates who are not in sexual relationships would also have to be eligible. A person's homosexuality would, in other words, not be of interest to the government when distributing any benefit.

Third, the amendment would block the courts, at both the federal and state levels, from second-guessing a legislature's decision to reserve a benefit for married couples. If the legislature has said that only married couples have joint adoption rights, for example, no court may grant that benefit to unmarried couples.

Some supporters of ...