There is a strong liberal argument against amending the U.S. Constitution to ban same-sex marriage, and we’re all familiar with it: GLBT people are people who deserve equal justice under the law, and we should not break our long constitutional tradition of expanding freedom by inserting discrimination into the U.S. Constitution for the first time in our history. While this may be the best argument against banning same-sex marriage and the one that our community emphatically endorses, we must realize that this argument does not carry much weight with conservatives. Many conservatives do not believe that our love – which they almost universally think of in exclusively sexual terms – deserves equal justice under the law. Confronted with this reality, the question for us becomes: is there a conservative argument to be made against an amendment to the U.S. Constitution banning same-sex marriage?
Such an argument does exist, and it is deeply rooted within the Christian tradition. Opponents of the recently failed Marriage Protection Amendment in the Senate began to touch upon this argument when they asserted that family law should be left to state legislatures and state courts, not dictated by the U.S. Constitution. Unfortunately, opponents of the amendment did not tap into the well of religious wisdom from which their argument drew. The idea that matters which can be handled by a lower authority should not be handled by a higher authority is not a new one: in Christianity, this concept is called the principle of subsidiarity.
What is the principle of subsidiarity? According to the Office of Social Justice for the Catholic Archdiocese of St. Paul and Minneapolis:
The principle of subsidiarity holds that the functions of government should be performed at the lowest level possible, as long as they can be performed adequately. When the needs in question cannot adequately be met at the lower level, then it is not only necessary, but imperative that higher levels of government intervene.
The principle of subsidiarity has been supported again and again in the writings of the popes, both before and after the Second Vatican Council. The principle of subsidiarity was also strongly supported by the United States Conference of Catholic Bishops in their 1986 pastoral letter, “Economic Justice for All” (#124). Lest anyone think that the principle of subsidiarity is merely a Catholic doctrine, let us also recall the words of Jesus:
If another member of the church sins against you, go and point out the fault when the two of you are alone. If the member listens to you, you have regained that one. But if you are not listened to, take one or two others along with you, so that every word may be confirmed by the evidence of two or three witnesses. If the member refuses to listen to them, tell it to the church; and if the offender refuses to listen even to the church, let such a one be to you as a Gentile and a tax-collector (Matthew 18:15-17, NRSV).
When teaching his disciples what they should do if a member of the Church sins against them, Jesus does not tell his disciples to go to the Church, the highest authority, first; rather, he tells his disciples to first approach the offender individually, then to go back to him or her with “one or two others,” and then finally to bring him or her before the whole Church. According to Jesus, the highest authority should only be appealed to when lesser methods have failed – this is the principle of subsidiarity, rooted in the Gospel of Jesus Christ.
Conservatives are familiar with the principle of subsidiarity. They appeal to this principle, for instance, when they argue that the local community and private charity should be providing for the needs of the poor and vulnerable instead of the government and publicly funded programs. They appeal to this principle, for example, when they argue that parents and local communities should determine educational standards instead of the federal or, sometimes, even the state government. Indeed, conservatives appeal to the principle of subsidiarity in just about every debate over social policy, from universal health care to gun control. Why, then, have so many Republican conservatives refused to examine the implications that the principle of subsidiarity has in the debate over amending the U.S. Constitution to prohibit same-sex marriage?
Conservatives who genuinely care about the principle of subsidiarity must ask themselves two questions. First, would amending the U.S. Constitution to prohibit same-sex marriage be a function performed at the lowest possible level of government? Second, can “the needs in question” be met at a lower level of government?
In answering the first question, some conservatives would argue that amending the U.S. Constitution to prohibit same-sex marriage would meet the requirements of subsidiarity because such an amendment would have to be passed by a supermajority of both congressional chambers and ratified by ¾ (or 38) of the states. How, some might argue, can such a lengthy process involving so many congressional representatives and so many state legislatures be seen as anything other than inclusive and in harmony with the principle of subsidiarity?
The problem with this argument is that it assumes a supermajority can meet the requirements of subsidiarity. In fact, if a function of government can be performed at a lower level, amending the U.S. Constitution would still be a violation of the principle of subsidiarity unless all of the states were to ratify the amendment. Why, some might ask, would unanimous ratification of a constitutional amendment be necessary for it to meet the requirements of subsidiarity? Let me give you an example. Let’s say that the Marriage Protection Amendment had passed both the House of Representatives and the Senate, and then had been ratified by 47 states – leaving Massachusetts, Vermont, and California as the only states not to ratify the amendment. Such a constitutional amendment would still be a violation of the principle of subsidiarity insofar as the state legislatures or state constitutional amendments in all 47 states could have done what this amendment to the U.S. Constitution would do, without impinging upon the right of the three other states to make their own laws. We can see, then, that even a supermajority does not guarantee compliance with the principle of subsidiarity when a function can be accomplished at a lower level of government.
What about the second question? Can “the needs in question” even be met at a lower level of government? Some conservatives would argue that they cannot, citing court rulings in Vermont, Massachusetts, and other states as examples of state governments’ inability to “protect marriage” from the destructive authority of so-called “activist judges.” These conservatives would argue that an amendment to the U.S. Constitution is necessary in order to prevent “activist judges” at the state and federal levels from ruling that bans on same-sex marriage are unconstitutional.
The problem with this argument is that it assumes that the states are powerless in the face of judicial rulings. This is not the case. In 1999, the Vermont Supreme Court ruled that the state of Vermont must either extend marriage rights to gay and lesbian couples or create an equivalent “domestic partnership” status with all of the same rights as married heterosexual couples. The legislature complied with this ruling and created civil unions, but the people of Vermont could just as easily have amended their state constitution to prohibit same-sex marriage or civil unions in their state if they had chosen to do so. Similarly, in 2003 the Massachusetts Supreme Judicial Court ruled that the state of Massachusetts must extend marriage rights to gay and lesbian couples. As in Vermont, the people of Massachusetts have it within their power to amend their constitution to ban same-sex marriage if they should choose to do so.
What about a recent ruling in Georgia, in which a judge ruled that an amendment to the state constitution prohibiting same-sex marriage and equivalent rights is unconstitutional? Doesn’t this Georgia ruling prove that even state constitutional amendments are inadequate? Absolutely not. This constitutional amendment was declared unconstitutional because it violated Georgia’s “single-subject rule”: constitutional amendments must deal with only one subject. The amendment in question defined marriage as a union between a man and a woman as well as prohibiting the extension of equivalent rights to other partnerships – in other words, two subjects in one amendment. The citizens of Georgia can still amend their constitution to define marriage as a union between a man and a woman. They can even amend their constitution to prohibit the extension of equivalent rights to other partnerships. But they must do so in two separate amendments, not in the same amendment. The important thing to note here is that it is still within the state’s power to prohibit same-sex marriage and equivalent unions if they choose to do so, which means that this function can still be accomplished at a lower level of government than the U.S. Constitution.
It is clear that amending the U.S. Constitution to prohibit same-sex marriage would not be a function performed at the lowest possible level of government and that “the needs in question” can be adequately met at a lower level of government. Yes, state courts can rule that it is unconstitutional to deny equal marriage rights to gay and lesbian couples – but as we have seen again and again, states also have the power to pass constitutional amendments that would prevent these judicial rulings. Under the Defense of Marriage Act, it would be impossible for one state to force another state to recognize its same-sex marriages or civil unions, and ten years later the Defense of Marriage Act has not been declared unconstitutional by the federal courts. Unless and until the federal courts overturn the Defense of Marriage Act or declare that laws banning same-sex marriage are violations of the U.S. Constitution, it would clearly be a violation of the principle of subsidiarity to amend the U.S. Constitution to prohibit same-sex marriage.
Where does that leave us? It leaves us with a strong conservative argument against amending anti-gay discrimination into the U.S. Constitution, an argument that can work even with those who believe that same-sex marriage is immoral and should be illegal. It leaves us with an argument that appeals to the same values appealed to again and again by conservatives in debates over social policy. It leaves us with an argument that is soundly based upon Christian social teaching and the words of Jesus Christ, an argument that can truly hold its own against the argument for discrimination proposed by so many on the Christian Right.