Jane Eisner: America not ready to legislate gay marriage

O n Dec. 7, 1875, President Ulysses S. Grant delivered his seventh annual message to Congress. After extolling the growth of the new republic in its first 100 years, Grant zeroed in on what he thought was essential for national progress in the next hundred.

Ignorant men, he said, cannot “oppose a successful resistance to tyranny and oppression from the educated few, but will inevitably sink into acquiescence to the will of intelligence, whether directed by the demagogue or by priestcraft. Hence the education of the masses becomes of the first necessity for the preservation of our institutions.”

But not just any education would do. So worried was Grant about the creeping influence of the “priestcraft” – in other words, the Catholic Church – that he proposed amending the U.S. Constitution to require that all public schools be stripped of sectarian influences and to ban any government funding of religious schools.

The amendment failed.

Lots of proposed amendments to the Constitution fail. Witness last week’s tepid Senate vote on the gay marriage amendment. There’s a reason the Constitution has been tampered with only 27 times in our long history – and that includes the 10 amendments in the Bill of Rights.

The process is deliberately cumbersome and complicated. Ratification of the 27th Amendment, limiting when Congress can vote itself a pay raise, took the longest – 202 years – but even the quicker changes were slow in coming. The 26th Amendment, giving 18-year-olds the right to vote, was approved in the fastest ratification in history, but only after three decades of debate in Washington.

Senate champions of the gay-marriage ban promise to press on with their cause, perhaps without realizing that history is not on their side. Substantive public policy changes rarely make their way into the historic document. Grant’s education amendment failed, as did attempts to regulate child labor and guarantee women’s rights.

More recently, congressional efforts to ban abortion and flag-burning have stalled. And we know what happened to Prohibition.

Americans seem to agree intuitively that the Constitution provides a blueprint for how government should operate, not an agenda for what government should do. That’s not to say the document is value-free. The long confrontation over slavery and segregation that finally resulted in amendments granting citizenship and voting rights to blacks was, finally, a statement of values.

Yet even those who believe that marriage should be a union only between a man and a woman don’t necessarily want that written into the Constitution. In the latest ABC News poll, 58 percent of those polled were against legalizing gay marriage, but only 42 percent wanted to amend the Constitution to forbid it.

There’s another reason the proposed ban on same-sex marriages swims against the historical tide. Most successful attempts to amend the Constitution are pushed by social movements of inclusion, not exclusion; of reforming the way senators are elected, or extending rights to blacks, women and young people, not restricting access to the rights of citizenship.

“The process is procedurally conservative but substantively liberal,” says Akhil Reed Amar, professor of law at Yale Law School, whose most recent book is “America’s Constitution: A Biography.”

“You need broad social movements to get a constitutional amendment passed, and those movements tend not to be of reaction as much as reform,” Amar says. “People probably care more about being included than about excluding others. There’s an asymmetry of passion.”

But when it comes to same-sex marriage, there is passion to amend constitutions – state constitutions, that is. The Pennsylvania House last week became the latest state legislative body to approve a constitutional amendment to ban gay marriage. Public opinion polls show a far greater comfort with state action on this issue than federal.

In that, too, history is speaking. President Grant’s attempt to promote a federal amendment was defeated in 1875, but the model he proposed was incorporated into 34 state constitutions over the next three decades. The so-called Blaine amendments have gradually been discredited as bigoted. Only time will show whether the same holds true for today’s groundswells.