Although the Court abandoned the Privileges or Immunities Clause after 1873, we are not without guidance as to what might be included. In a circuit court opinion in 1823, Supreme Court Justice Washington said that the privileges and immunities of state citizens "are, in their nature, fundamental; [they] have, at all times, been enjoyed by the citizens of the several states which compose this union, from the time of their becoming free, independent, and sovereign," adding that "it would perhaps be more tedious than difficult to enumerate" what they are. The privilege of marriage precisely fits this description, especially since it was always thought to be basic to society's well-being.
In a 1923 case called Meyers v. Nebraska, which struck down state laws forbidding foreign language courses in primary schools, the Supreme Court, referring to the Fourteenth Amendment, said: "the right of the individual . . . to marry . . . and generally to enjoy those privileges long recognized at common law [is] essential to the orderly pursuit of happiness by free men." Not only did the Meyers opinion infer that marriage is a protected "privilege," it cited Slaughter-House to support the inference.
Same-sex marriage proponents admit the traditional understanding of marriage as monogamous and heterosexual, which is why they call for it to be redefined. Of course, to stretch the limits of the marriage union beyond a man and a woman is by definition, a change in its nature. Those who assert that redefining marriage would be a good thing cannot also claim that redefinition would not change marriage as we have understood it: changing it is their whole purpose. But any fundamental state-imposed change would "abridge"--weaken or limit--the marriage privilege within the meaning of the Fourteenth Amendment. A new constitutional amendment would be needed to allow the states to redefine or abolish marriage. Short of that, the Fourteenth Amendment imposes on Congress the duty to defend the privileges of American citizens against state actions to change their meaning.
ENACTING A MARRIAGE PRIVILEGE PROTECTION STATUTE in the current Congress would give Republicans a significant advantage in next year's elections. Compared to the lengthy process of ratifying the FMA, they would have taken immediate action to protect traditional marriage. This would not stop gay marriage from being an issue in the election campaigns. Rather, it would bring the question to the forefront.
The long delay connected with getting an amendment through Congress would allow incumbents to obscure their position. Neither Republican nor Democratic lawmakers want to vote on divisive issues like gay marriage. Some in both parties would say they support traditional marriage, yet find a multitude of objections to the amendment: the idea of changing the Constitution, the need for more expert testimony, etc. Even now the amendment's sponsors don't agree with each other about the proposed text's meaning and whether it should be changed. Opponents will have a field day with the "vague" language. If President Bush took a leadership role, the marriage privilege protection statute could be brought to a vote before November 2004. Every senator and representative would be on record, and the party division would not be buried in platform statements.
