Republican presidential candidates are already talking about a constitutional amendment to reverse the Supreme Court’s upcoming gay marriage decision.
The court’s Roe v. Wade of gay marriage might happen. The constitutional amendment won’t.
How do I know this? Republicans were never able to pass a constitutional amendment reversing the real Roe v. Wade, the one concerning abortion. The last time they even tried, the amendment fell 18 votes short of the required two-thirds majority in a Republican-controlled Senate. It got just 49 votes.
That was in 1983. Ronald Reagan was president and he supported the human life amendment. It couldn’t pass even under these conditions and it never made it as far as the Senate floor again.
Come to think of it, that was pretty much the fate of the federal marriage amendment more than 20 years later. Once again, the Republicans controlled the Senate. They held a cloture vote. Only 48 senators voted for the amendment, 49 voted against. It has never made it to the Senate floor again.
Yes, the amendment being proposed now is different. In 2006, the Senate voted on defining marriage as the union of a man and a woman in all 50 states. Today, social conservatives are fighting to allow states to keep their power to so define marriage, as only 14 states still do.
That number would certainly be much larger if state legislatures and voters were deciding the issue instead of judges. To put things in perspective, as recently as 2013, the numbers were totally reversed: 36 states didn’t recognize same-sex marriage while only 14 did. Alabama certainly wouldn’t have gay marriage democratically.
But public opinion has been trending more or less steadily in favor of gay marriage. Same-sex nuptials started winning at the ballot box in state elections in 2012, when the president of the United States reversed himself on gay marriage and won reelection.
If a constitutional amendment on marriage didn’t so much as make it through the Senate when a majority of Americans still held the traditional view, it’s not likely to do so now.
A slew of other conservative constitutional amendments with more potential support have similarly stalled: against flag-burning, for balanced budgets, against forced busing, for school prayer, against religious liberty infringements, for term limits. Most of them have never even cleared a single chamber of Congress. Forget getting ratified by the states.
We might as well pass a constitutional amendment requiring the federal government to obey the Constitution.
What can social conservatives do? Again, look at their experience with Roe v. Wade and abortion.
When the pro-life movement focused on a constitutional amendment, it failed. Constitutional amendments require real consensus, supermajority support in Congress and among the states. Abortion and marriage are issues on which people are divided.
By the 1990s, they switched to a more incremental strategy: parental-notification laws, curbs on taxpayer funding, informed consent and banning partial-birth abortion. Partial-birth abortion — a procedure that, as the name implies, involved partially delivering a fetus — combined with ultrasounds helped drive home what abortion really is.
Unlike the human life amendment, many of these bills passed. They also coincided with public opinion moving in a generally more pro-life direction.
You can restrict abortion in varying degrees, even with Roe v. Wade. You either have gay marriage or you don’t.
Abortion is also a life-and-death matter as gay marriage is not.
But the war on women aside, pro-lifers do best when it’s clear that they are fighting not for patriarchy, theocracy or control of women — but for babies. It’s one reason, though surely not the only one, the abortion rate has fallen to a post-Roe low.
Social conservatives weren’t ever able to make the marriage debate about babies. Liberals pointed to numerous examples of childless and infertile married couples, not realizing that this is about institutions and incentives rather than micromanaging each person’s life. And lots of social conservatives really did want to use the gay marriage issue to re-stigmatize homosexuality, which wasn’t going to happen.
Now we’re left with supposedly repressed social conservatives being the only people making this risqué observation: sex between men and women frequently makes babies. It’s good to have some institution that encourages these men and women to stay together and raise them.
If it ain’t going to be marriage, it ought to be something.
Maybe social conservatives could have had a debate about what marriage is for and won. Instead they had a debate about who is allowed to get married and lost.
Is it possible to lose the gay marriage debate and still win the bigger argument about marriage? Longtime marriage defender David Blankenhorn hoped so when he came out for gay marriage.
It would waste no more time than a constitutional amendment.
W. James Antle III is managing editor of The Daily Caller and author of the book Devouring Freedom: Can Big Government Ever Be Stopped? Follow him on Twitter.