There are, from time to time, contrived issues to be contended with by us in constitutional law. Particularly troubling today, for example, is the concern expressed in some quarters these days about the dangerous implications of any official recognition of “same-sex marriages,” depending both on what form such recognition takes and on what precisely it is taken to mean. So concerned are some about all this that they have, from time to time, promoted a constitutional amendment with a view to “protecting” marriage.
It can seem rather odd, at a time when sexual promiscuity is obviously rampant among us heterosexuals and when so many conventional marriages routinely end in divorce, that others among us are to be vigorously resisted in their efforts to acquire for themselves the advantages (as well as the duties and even the liabilities?) of “marriage,” however fruitless their relations are likely to be. All this is aside from what various religious communities, as well as citizens at large, are left free to regard as proper sexual relations and a valid marriage.
The perennial homosexual minority among us would be more discreet (and perhaps healthier) in its relations than it is now if our heterosexual majority had not become, in recent decades, so blatant and hence so generally corrupting in its eroticism. In short, unfortunate models have been provided for the more impressionable members of our community.
As matters now stand, the constitutional amendment talked about here can be expected to have as much (that is, as little) useful effect as a balanced-budget amendment or as an anti-flag-desecration amendment would have. Efforts would still have to be made, in our circumstances, to permit sensible financial and other arrangements for useful domestic partnerships, homosexual or heterosexual.
One can be reminded here of the folly of the Prohibition Amendment, which not only contributed to the development of organized crime in the United States but, even worse, gave governmental promotion of morality a bad name. In these and like matters, both outrage and apathy should be discouraged—and a moderating generosity should be encouraged.
Even so, religious fundamentalists and militant homosexuals should at least recognize that they do share these days, despite their sometimes bitter rivalry, a considerable respect for any partnership that can plausibly be called “marriage.” In this, at least, both factions are now apt to appear more “old-fashioned” than most of the rest of us.
In addition, each of these factions may be somewhat suicidal in how it conducts itself with respect to these and like matters. That is, it can be instructive to figure out why the status of nature does seem to be, for each faction, an enduring problem, albeit in significantly different ways, promoting immaturity among some and superstition among others.
Whatever may be attempted, by constitutional amendment or otherwise, to regulate the names applied to the intimate, ostensibly permanent, relations of a somewhat sexual character that people venture to establish among themselves, it is widely accepted that lawlessness is on the rise among us. The prevailing lawlessness seriously limits what the community can reasonably be expected to do in regulating the language and personal conduct of citizens.
Here, as elsewhere, Individualism has both attractive and dubious features. Responsible leaders, in government and out, should try to help us talk and act sensibly about temporarily controversial matters.
These remarks were drawn on in the 2004 Preface (pp. xxxix-xl) added to George Anastaplo’s The Constitutionalist: Notes on the First Amendment when it was reprinted in 2005 by Lexington Books. (This book was originally published by the Southern Methodist University Press in 1971.) See, also, George Anastaplo, “Harry Victor Jaffa, Leo Strauss’s Bulldog” (posted on http://www.anastaplo.wordpress.com), Sections III-VI and note 49. See, also, “A Conversation with Harry V. Jaffa at Rosary College” (posted on http://www.anastaplo.wordpress.com).