The history of using constitutional amendments to resolve basic social problems is daunting. Like opposition to homosexual unions, the movements to abolish slavery, alcoholic consumption, and polygamy were centered in Christian churches. The anti-slavery struggle took over 60 years to ratify the Thirteenth Amendment, and only after civil war forged a consensus of sorts. During those decades many federal laws were enacted to limit the growth of slavery. The temperance movement began in the 1820s but the first prohibition amendment was not introduced until 1876, after which they were proposed almost every year. An amendment was ratified in 1919 after 90 years of work, only to be repealed in 1933.
The social conflict most like gay marriage involved the Mormon practice of polygamy in the western territories. Americans overwhelmingly opposed plural marriage. The first Republican party platform in 1856 denounced polygamy and slavery as "twin relics of barbarism." President Grant proposed an anti-polygamy amendment in his 1875 State of the Union message, and for decades thereafter, amendments were introduced. Before World War I, 26 states had petitioned for a constitutional convention. Yet legal recognition of polygamy was crushed not by amendment but by a series of limited executive actions and federal laws that were sustained by the Supreme Court.
SOME CONSERVATIVES RESIST federal legislation on gay marriage because, they contend, family regulation belongs to the states, not the federal government. (Of course if these conservatives support FMA, they don't really object to the shift.) In fact the horse has been stolen from the barn. Lawrence v. Texas dragged same-sex marriage into the federal arena. If the Supreme Court blesses the Massachusetts decision, gay marriage will be nationalized to stay.
For example, instead of directly forbidding same-sex partners to marry, a federal marriage privilege protection measure would make it a criminal offense for state or local officials acting "under color of law" to issue a marriage license to persons of the same sex. Constitutional authority to pass this measure comes from the Fourteenth Amendment, buttressed by the Republican Guarantee clause (S. 4 of Art. IV) and the Necessary and Proper clause (par. 18, S. 8 of Art. I).
To appreciate this, consider the nature of the marriage relationship as understood from antiquity through centuries of thought and experience that shaped its meaning in American legal practice: The marriage union is a relationship characterized by privilege. Each spouse is recognized to have a privilege "to have and to hold" the person of the other. The privilege is exclusive: No one else may claim a right to join that union.
The marriage privilege is prior to government in the sense the Declaration of Independence speaks of regarding inalienable rights: "among these [implying there are others] are life, liberty, and the pursuit of happiness." Families exist by nature to perpetuate the species, or natural rights themselves would disappear. Government's purpose is not to dispense rights but to "secure" rights created by "Nature and Nature's God." To do this, governments enforce laws placing limits on how people exercise their natural rights and privileges. For instance, the rights to liberty and life can be constrained by jailing or executing criminals. The marriage privilege also must be regulated because the family is central to the well-being of society. No nation has ever claimed that a person should be permitted to marry anyone he or she chooses. The legal requirement of a marriage license grants a social privilege par excellence, a relationship to be enjoyed only by specific persons permitted and protected by law.
