Marriage amendment jitters: the social Right tries to get it together.

SANDY RIOS, the president of Concerned Women for America, was pounding the table. She was at an October 1 meeting of social-conservative activists and the leading Republicans in the House and Senate. Some Republicans were worried about the activists' project: amending the Constitution to prohibit same-sex marriage and, possibly, civil unions as well. Rios said that social-conservative groups were energized as never before. "The grassroots will get motivated and members will have to vote for it," she said. "We will take out squishy Republicans."

Now that's confidence. Passing a constitutional amendment is difficult in the best of circumstances. Supporters of a Federal Marriage Amendment will have to get two-thirds of the House, two-thirds of the Senate, and three-quarters of the state legislatures to vote for it. If all the Republicans in Congress vote for the amendment, it will still need the support of 16 Senate Democrats and 61 House Democrats. That's a tall order. Especially when you consider that, until recently, social conservatives had not even been able to get two-thirds of their own organizations on the same page.

The social-conservative groups have been united in the belief that something must be done to prevent state and federal judges from imposing same-sex marriage on the country. They were alarmed when the Supreme Court struck down sodomy laws in the spring--not so much because they supported those laws, although many of them did, as because they thought that the Court's reasoning would in time lead it to redefine marriage. They expected that the Massachusetts supreme court would impose same-sex marriage on that state over the summer (although it has not yet ruled).

Bill Frist, the Senate majority leader, gave the social Right a boost by coming out for a marriage amendment right after the Supreme Court's ruling. But social conservatives spent the summer and early fall arguing with one another about what the amendment should try to do. The Alliance for Marriage, which has been leading the campaign for an amendment since the Vermont courts established civil unions, had proposed specific language--but the social conservatives could not agree on what the language meant. Marilyn Musgrave, a Republican congressman from Colorado who had agreed to sponsor the Alliance's amendment, thought that it left civil unions alone. Two of the drafters of the amendment, Gerard Bradley of Notre Dame Law School and Robert George of Princeton University, thought to the contrary that it nullified some civil-union laws.

Some conservatives, especially those in Congress, were in the Musgrave camp: They thought that the amendment did not touch civil unions and were happy that it didn't. (They thought either that states should make their own decisions about civil unions or that an amendment banning civil unions could not be enacted.) Other people agreed that the amendment left civil unions alone, but objected to that silence. They wanted an amendment that would ban gay marriage and civil unions. Bill Bennett, Rios, and the Family Research Council, among others, argued strongly that it would be pointless to fight for an amendment that allowed gay marriage in all but name. The amendment had to "protect an institution, not a word."

So the objectors toyed with different wording. But they again ran into trouble. Everyone agreed that it did not make sense for a constitutional amendment to go into great detail about what benefits would and would not be available to gay couples. Another idea was to try to strengthen a 1996 law called the Defense of Marriage Act. That act defined marriage as heterosexual for purposes of federal law, and attempted to safeguard the ability of states to refuse to recognize other states' same-sex marriages. Rep. John Hostettler, an Indiana Republican, wanted to pass a law to block federal courts from hearing challenges to the act.

There were problems with this approach, too. If the courts are prepared to impose gay marriage as soon as they can get away with it, as social conservatives worry, the Defense of Marriage Act will not stop such judicial activism. If, for example, Justice Kennedy and four colleagues decided that current marriage laws constituted unconstitutional discrimination (or an unconstitutional infringement on liberty), state laws would have to change even if the Defense of Marriage Act stayed on the books. If 50 state judiciaries imposed same-sex marriage, that would be the policy all over the country, and, again, it wouldn't matter whether the Defense of Marriage Act was still theoretically in force.

As the debate over wording continued, the White House and Orrin Hatch, chairman of the Senate Judiciary Committee, were urging the amendment's supporters to make it clear that they would not eliminate civil unions. In the four years since Vermont adopted civil unions under court order, support for them has become, in some respects, the moderate position (which is evidence of how badly the social Right has been losing). The social-conservative groups took to holding meetings without including anyone from Capitol Hill--not even Musgrave was allowed in, or social-Right stalwarts such as Rep. Joe Pitts of Pennsylvania. Conservative activists were pulling the amendment right while the Republican establishment was pulling it left. It looked as though the amendment would fall apart.

It fell to Chuck Colson, the leader of Prison Fellowship and perhaps the most unifying figure among social conservatives today, to find a solution. On October 15, he succeeded in getting more than 20 groups to come up with a common position. They agreed that the amendment would prohibit gay marriage. It would also prohibit the states and the federal government, including both the courts and the legislatures, from providing any benefits to people that were contingent on their being involved in a sexual relationship outside of marriage. The amendment would, however, allow state legislators to extend the particular privileges of marriage to gay couples--just not as gay couples. People not in gay relationships would also have to be eligible.

Say, for example, a state had made co-signing for loans a privilege of marriage. The state legislature could decide, under the amendment, to extend that privilege to any two people who share a home: a lesbian couple, or an unmarried heterosexual couple, or two sisters who share the rent, or whoever. The legislature could come up with a bundle of privileges formerly reserved to married couples--bereavement leave, hospital-visitation rights, the ability to make joint adoptions, and so on--and provide them more widely.

Whether the amendment agreed upon by the groups at Colson's meeting would ban "civil unions," then, is not a yes-no question. It would allow civil unions so long as eligibility for them is not based, even in part, on the fact, supposition, or presumption that the people involved are having sex. The amendment would thus make it theoretically possible for gay couples--and cohabiting straight couples--to have any of the benefits of marriage, except for governmental recognition of their relationships as equivalent to those of married people.

SENTENCE BY SENTENCE

That's what Bradley and George thought the original text of the Alliance for Marriage's proposed amendment did. It read: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups." At Colson's meeting, it was decided to add a third, clarifying sentence: "Neither the federal government nor any state shall predicate benefits, privileges, rights, or immunities on the existence, recognition, or presumption of sexual conduct or relationships." The groups did not decide that this language had to stay in all its particulars, but all remain committed to the concept they think it embodies.

There is still controversy about the meaning of the second sentence, the one about "legal incidents." In this case, the controversy has been public and the arguments have come from the social Left rather than the social Right. Liberals and libertarians have complained that this sentence would radically restrict the powers of state legislatures. They envision a scenario in which, say, the Ohio legislature passed a law allowing joint tenants, rather than just married people, to co-sign loans. Courts would not be able to enforce that law, they argue, because they would have to "construe" the new law to confer "incidents of marriage" on unmarried people.

Bradley and George make a good case that this criticism is simply a misunderstanding. The "legal incidents" of marriage are whatever state laws say they are. If the legislature says that only married people can automatically co-sign loans for each other, co-signing loans is an incident of marriage. If the legislature passes a new law saying all joint tenants can co-sign loans, it's not an incident of marriage anymore. What the second sentence says is that when a state legislature has reserved some benefit for married couples, the courts cannot force that benefit to be extended more broadly.

Let's say that the amendment has passed and that the Virginia legislature has left co-signing loans as an incident of marriage. Further, let's say a gay couple (or an unmarried heterosexual couple) go to court and say they have a right to co-sign each other's loans. The Fourteenth Amendment requires states to treat people equally, they say, and that means the state has to grant them the benefit. Under the Federal Marriage Amendment, the court would have to send these plaintiffs home unsatisfied. The court would not be able to "construe" the Fourteenth Amendment to "require" that the state provide a benefit it has reserved to married couples--a "legal incident" of marriage--to the unmarried. If, on the other hand, the legislature had extended this privilege more widely, the court would have no trouble going along with that.

THE FEDERALIST HESITATION

Proponents of the amendment realize that they will have to address the argument that it violates federalist principles, a point that makes many conservatives who are sympathetic to it hesitate. The proponents have four responses. First, they say, marriage law is not exclusively a state concern. The federal government got rid of polygamy and forced states to allow interracial marriage. Second, some of the reasons federalism is valuable do not apply here--not, at least, if gay marriage is, in fact, a bad idea. Federalism is often defended because the states are "laboratories of democracy" and because different policies are appropriate for different states. Most social conservatives don't think that we need state experimentation to find out whether gay marriage is a good idea or to prove that it may be a good idea for some places. Third, they note that almost all the state governments would have to approve the amendment for it to be enacted. The states would not, in practice, be trampled on. Fourth, they argue that the alternative to their amendment is not federalism, but a judicially imposed national regime of gay marriage.

If that's true, then the amendment would provide states greater leeway than they would otherwise have. It would remain up to state legislatures to decide which benefits should be reserved for marriage, and which should be more widely available. The social-conservative supporters of the amendment stress that the amendment does not represent a grand compromise in which they give in on the question of benefits for gays. They figure they will fight over that issue state by state.

The social conservatives think that their amendment is politically viable. True, it would force a substantial modification of the few existing civil-union laws, and many of the existing domestic-partnership laws. People who believe that equality demands that the government recognize gay relationships as on a par with marriages will oppose the amendment. But proponents think that it would put Republicans in the position of supporting the traditional definition of marriage without necessarily denying any benefits to gays. "The outcome of this debate will depend on the extent to which conservatives are seen as pro-marriage rather than anti-gay," says a senior Republican congressman. Some proponents of the amendment think they have found a useful line: The amendment isn't against civil unions, they say, only against "discriminatory" civil unions that are for gays only (or gays and unmarried straight couples only).

It isn't clear that the White House and most congressional Republicans will agree that the amendment is doable. Tom DeLay, the House majority leader, has sometimes said he is against amending the Constitution at all. The White House has been waiting for the Massachusetts court to act. It still has not, even though its decision was expected months ago. If the court brought full-fledged gay marriage to an American state for the first time, there might be a strong public reaction against it--and the president would have a clear reason to come out for an amendment to prevent gay marriage. But the court may decide to opt for civil unions, or some other dodge, in order to avoid a political reaction.

I'm skeptical of the amendment's chances. The rules for democratically enacting constitutional amendments are such that amendments can be easily defeated. If one of the two major parties uniformly opposes an amendment, the amendment is dead. If a wing of a party opposes it and commands any significant support in the country, the amendment will probably go down. All of the Democratic presidential candidates have come out against the marriage amendment.

Many amendment supporters seem resigned to fighting a long, difficult battle for it over the course of several elections. "There is more passion than any issue I have experienced," says Colson. "This is a very significant wedge issue in my opinion."