Same-Sex Marriage – Cluttering Up Our Constitution

The war of words is underway in Minnesota (and many other states across the country) as ballots will soon give voters the choice on whether to establish a constitutional ban on same-sex marriages. Most ballot initiatives go something like this: “Do you favor a constitutional amendment that will ban same-sex marriage?” Unfortunately, very few voters recognize this question as a false dichotomy. In other words, it's a question that has at least three valid answers but only allows two options for answering. My wife and I used to give our children false dichotomies all the time. We'd ask, “Do you want to go to bed by yourself, or do you want me to carry you to bed?” That worked really well until they were about ten, when they first recognized there was a third option we weren’t giving them – not going to bed at all.

So what are the three valid answers to the same-sex marriage amendment?

1.) Yes, I favor same-sex marriage and vote against the amendment.

2.) No, I oppose same-sex marriage and vote in favor of the amendment.

3.) I oppose same-sex marriage, but I also oppose changing the constitution.

This third group is in an unusual position of having to choose which is worse, allowing same sex marriage or changing the constitution. Some opponents of same sex marriage may vote yes; others may be forced to vote against a position they actually favor. That is, they cannot vote to oppose same sex marriage; they can only vote on whether to change the constitution to oppose same sex marriage.

So why do the opponents of same sex marriage even want to go to all the trouble to change the constitution to prohibit something that is already prohibited by law? They want the amendment because the constitution is very hard to change. It takes only a majority of legislators and the governor to change a law, but it takes all that plus a super majority of voters to change the constitution. But is that what we really want?

The constitution was designed to be a procedural document. That is, a system of rules that are very hard to change because they control how government works, who has what power, and how those powers are administered. We don’t want our politicians changing the constitution willy nilly just to achieve some short-sighted political objective. Keep in mind that the only time the federal constitution has been changed to add a substantive provision was the Volstead Act banning liquor sales in the United States. This is probably the single most disastrous piece of legislation ever passed. Its quick demise proves we need flexibility in modifying substantive laws that dictate how the public must or must not act, many of which are enacted because a fleeting emotional attachment to some ethereal social value. Times change, and laws must change or be amended to reflect the public’s changing social values and needs. That’s what legislatures do, figure out our needs and pass laws to address them. Changing the constitution, however, is serious business, not to be taken lightly.

I do have an opinion about the merits of the issue, but I won’t tell you what it is because the answer is unimportant. I will tell you that I am voting “no” because I believe it is most unwise to change the Minnesota constitution to suit whatever moral rules may currently be in fashion. Views on same-sex marriage are bound to change, and however they change, our legislature should retain the power to respond to the views of the majority. Changing the constitution may be what the majority wants today, but it may also mean that a minority of voters will rule the day in the not to distant future. Of course that’s exactly what the proponents want – to rule the day even if they eventually become a minority later on.

If you liked this article, you might also be interested in my post last week, Same-Sex Marriage - A Political Game.