The movement by state and federal legislators to ban gay marriage by constitutional amendment has become a key issue in the 2006 midterm and 2008 presidential elections. The core issue in the gay marriage debate is how narrowly or broadly marriage should be defined by the state and whether gay and lesbian couples should have the same marital privileges as heterosexual couples. However, there is a more fundamental issue at the heart of the gay marriage debate, which is whether the state or federal government should be amending their constitutions to define marriage in the first place. As well, it is important to look at gay marriage in the context of the historical evolution of marriage in America.
While representatives and senators may want to amend the Constitution to reflect a conservative trend in America, it is outside the purview of Congress to legislate marriage. States are reserved the rights not explicitly given to the federal government in the Constitution and state legislatures are better able to gauge the prevailing political wind within their state boundaries. While this may be disheartening to gay marriage advocates in the wake of many such amendments passing state legislatures, there is still hope in a wide interpretation of the Fourteenth Amendment. This amendment, which was passed in the wake of the abolition of slavery, guarantees equal protection of the law for all American citizens. The equal protection clause ensures that Congress can pass laws protecting these rights and not abridging them in anyway, with states often times the agents for enforcement through federal mandate. A new amendment specifically banning gay marriage not only flies in the face of the Fourteenth Amendment but flies in the face of the spirit of constitutional law.
The historical evolution of marriage is also favorable to the defeat of gay marriage amendments to state and federal constitutions. However, this evolution is incredibly slow and gay rights activists need to be aware that it will take time for a more tolerant society to gay marriage and lifestyle to come about. In fact, the state of Alabama only recently removed a state law that prohibited interracial marriage within state boundaries. This type of lag in progress for racial issues shows that gay marriage may be a generational, not an annual, debate.
