Amending the Constitution December 5, 2003February 24, 2017 The year was 1861 and there was deep cultural division in the land. The South had its culture of slavery – negroes were counted in the United States Constitution as three-fifths of a person, after all – and the North was crawling with abolitionists. A Constitutional Amendment was passed by Congress on March 2, 1861, and sent by what I can only assume was an unenthusiastic Lincoln to the governors of each of the states for ratification. (You can buy Lincoln’s transmittal letter to the governor of New Hampshire for $95,000 from the current PROFILES IN HISTORY autograph catalog, from which I am lifting most of this history. You will not find me bidding against you.) The Amendment read: ‘No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service [i.e.: slaves] by the laws of said State.’ Clearly unconstitutional, if you ask me . . . but (a) no one would ever have thought to ask me; (b) how could the Supreme Court rule a Constitutional Amendment unConstitutional?; (c) Fort Sumter was fired on the following month and the states never got around to ratifying the amendment. Instead, 17 months later, Lincoln issued the Emancipation Proclamation. This year, 2003, a Constitutional Amendment has been introduced in both houses of Congress to prevent states from granting marriage licenses to gay and lesbian couples, even if (like Massachusetts) they want to. If passed, and ratified, it would be only the second amendment ever passed to restrict individual freedom (Prohibition being the other, in 1919, repealed in 1933). The thing about marriage is that it makes a lot of good people nervous. Even though many people understand it’s civil marriage Massachusetts has coming down the Pike, not religious marriage, it just doesn’t sound right. Couldn’t you call it something else? And, again, I am no lawyer, but the problem with calling it something else is that tens of thousands of public laws and millions of private contracts refer to the words marriage and married. How would you ever change them all? Unless you passed a law mandating that all such references ‘shall henceforth be required to be interpreted to include [whatever we agree call it],’ calling them something else doesn’t get you to equal economic benefits and rights. So while half the country opposes gay marriage, only 20% favor amending the Constitution for the purpose of preventing states from granting gay couples equal rights. Unfortunately, that 20% largely controls the House, Senate and Justice Department, so this amendment can’t be dismissed out of hand. Thomas Jefferson had this to say about amending laws and constitutions: I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors. In the current instance, this could be read two ways. One way: Look, don’t do it lightly, but sometimes you have to amend constitutions. The other way: Yes, but they need to be amended, or reinterpreted, to keep up with enlightenment and the discovery of new truths, not to hold them back. And while this is clearly a matter for dispute, many would argue that the modern world has made a new discovery: that gays and lesbians do not choose to be gay or lesbian and that, once you get to know them, they can not only turn out to be pretty decent folk (with exceptions to be sure), they can actually send real estate values soaring. Most Republicans in Congress oppose equal rights for gays and lesbians (or extending existing hate crimes legislation to cover hate crimes against us or extending existing anti-discrimination legislation to cover us). Last I looked, 61% of Republicans in Congress scored zero on the Human Rights Campaign scorecard . . . there was nothing they were with us on, not even having an antidiscrimination policy in their own offices. (And this number, 61%, was actually up from 46% ten years earlier.) Most Democrats in Congress, by contrast, do favor equal rights for gays and lesbians – 71% scored 100% with the Human Rights Campaign (and only 2% scored zero). So there’s a pretty sharp cultural divide, and some have suggested that if we are going to start amending the Constitution to conform more closely to the Bible, we should not stop with discrimination against gays and lesbians. You may have seen this whizzing around the Internet: A. Marriage in the United States shall consist of a union between one man and one or more women. (Gen 29:17-28; II Sam 3:2-5.) B. Marriage shall not impede a man’s right to take concubines in addition to his wife or wives. (II Sam 5:13; I Kings 11:3; II Chron 11:21) C. A marriage shall be considered valid only if the wife is a virgin. If the wife is not a virgin, she shall be executed. (Deut 22:13-21) D. Marriage of a believer and a non-believer shall be forbidden. (Gen 24:3; Num 25:1-9; Ezra 9:12; Neh 10:30) E. Since marriage is for life, neither this Constitution nor the constitution of any State, nor any state or federal law, shall be construed to permit divorce. (Deut 22:19; Mark 10:9) F. If a married man dies without children, his brother shall marry the widow. If he refuses to marry his brother’s widow or deliberately does not give her children, he shall pay a fine of one shoe and be otherwise punished in a manner to be determined by law. (Gen. 38:6-10; Deut 25:5-10) G. In lieu of marriage, if there are no acceptable men in your town, it is required that you get your dad drunk and have sex with him, tag-teaming with any sisters you may have. Of course, this rule applies only if you are female. (Gen 19:31-36) I have not checked the marriage citations for accuracy because my view is that, even if they are accurate, and fairly interpreted, they are outdated. Much as Jefferson described, times change. Understanding changes. (You will recall that the Bible was long used as justification for slavery – ‘Slaves, obey thy masters’ [Colossians 3:22] ‘with fear and trembling’ [Ephesians 6:5].) But while some things change, some things don’t – love, fairness, honesty – life, liberty, the pursuit of happiness – and we should perhaps be prepared, when it doesn’t hurt us, to allow these wonderful things to others, even if we don’t much like being around them.