The debate over a constitutional amendment that would limit marriage to opposite-sex couples is shaping up as expected. Such an amendment is supported by Republicans and President Bush. John Kerry and John Edwards favor civil unions for same-sex couples but insist that marriage and family issues should be left to the states.

The Kerry-Edwards position suffers an obvious flaw. With state courts, such as the supreme court of Massachusetts, finding prohibitions against same-sex marriage unconstitutional, state legislatures are left without the power to limit who can get married to who. Congress, which is additionally handicapped by lacking constitutional authority to regulate marriage and family issues, is also not in a tenable position to overturn constitutional rulings by legislating marriage restrictions. This was the problem that led to calls for a constitutional amendment to begin with.

The flaw in the Republican proposal is a bit more complicated. A quarter century ago it would have been understood that marriage and family law are state issues and that even the states' role in regulating and manipulating marriage and family was a limited one. Marriage and family issues were more importantly legally classified as private issues that are so fundamentally important to individuals and society that they deserved protection from government intrusion.

Over the past two decades, Congress has carved out an ever more intrusive federal role that changed the relationship between individuals, their families, and the government. Federal family law reforms, beginning with child support, are now backed with more than $10 billion per year in federal funding. Constitutionally, states are not obligated to comply, but the federal government enforces the reforms by withholding funds from states that do not cooperate.

By the time the Massachusetts decision was handed down, marriage and family had already been redefined as "social policy," a classification reserved for entitlements in government programs that are not subject to normal individual rights claims. This reclassification was essential to the continuation of federal involvement, and therefore the funding that was included. Because the classification eliminates enforcement of individual rights, it blocked the efforts of parents to defend themselves in court against arbitrary government intrusion and manipulation of family related issues. Thus, in concrete effect, they were unable to defend against the substantive redefinition of marriage.

In issues of social policy, individual rights analysis is not generally applied. Courts may however instate constitutional rights where the people bringing the constitutional challenge are regarded as belonging to a suspect class. Because of the resulting differences in rights assigned to groups, this type of ruling sometimes leads to what is known as "reverse discrimination."

Like a house of cards; the Massachusetts decision relied on the position that marriage is merely a policy defined by government. In that context, it saw the limitation to opposite-sex couples as an arbitrary political choice, discriminating against same-sex couples that it characterized as otherwise equal in nature and possibly better as parents. As difficult as it is for many people to swallow this position today, it would have been impossible for a court to make such a decision just a decade or two ago. Aside from the fundamental legal change described above, the interim period has seen massive propaganda attacks against fathers and traditional families – designed to promote federal family reform – that built confidence in the acceptability of arbitrary manipulation of family policy.

Federal courts, and the United States Supreme Court in particular, have been reluctant to overturn state court rulings in domestic relations issues because constitutionally they are states' issues. They refused to hear a key case attempting to preserve family rights shortly before the Massachusetts same-sex ruling appeared.

States on the other hand are complying with federal statutes and regulations in order to secure funding. So we have an odd situation where the branches of government are not in sync. Congress has freely manipulated marriage and family but the federal judicial branch has not provided the necessary defense against arbitrary government intrusion.

A constitutional amendment "defining marriage" as between a man and a woman would also formally redefine this one attribute of marriage as a federal issue, thus making clear a very limited role for oversight by federal courts. But it would not address the issues that created the current dilemma. Not protecting other vital aspects of marriage and family could easily lead to an even more confusing shell game over powers and the protection of rights, hit-and-miss instances of judicial activism, and a constantly changing status for families.

The uncertain political environment in which families must survive these days is appalling. Every time someone in a special interest group provides what seems to be a PC suggestion for more federal spending, the relationship between family and the government, and therefore the character of family and marriage changes again. The Republicans' promotion of marriage initiatives and other tamperings follow that pattern.

Had the federal government respected the constitution and limited its impact on family law, there would be no need for any constitutional amendment. Had the U.S. Supreme Court acted to keep the federal government within its constitutionally allowed areas of jurisdiction and defended family rights, we would not need a constitutional amendment. Now that we do need a constitutional amendment; one that defines who can get married is only a superficial treatment of what has become the most apparent symptom of federal manipulation of family law. The real solution to the problem lies at a more fundamental level.

We need a family rights amendment that would explicitly define family issues as private issues and would explicitly forbid Congress from interfering. This would eliminate the political manipulation of marriage and family by the federal government and at the same time establish the role of the U.S. Supreme Court in defending individual rights in relation to family issues. Such an act would restore the careful balance between government power and family rights that developed over many generations and strengthen the defense of marriage and family for future generations.

Roger F. Gay