On June 28, 2013, Rep. Tim Huelskamp, a Republican representing the First District of Kansas, introduced House Joint Resolution 51 which proposes amending the Constitution of the United States through what would be cited as the “Marriage Protection Amendment.” The amendment would define marriage in the United States as a legally observed state that can consist “only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman”. This proposed amendment has an additional 58 co-sponsors, all but two of them being Republican members of the House of Representatives.

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The arguments in favor of the Marriage Protection Amendment typically boil down to a core set of justifications. The most universally mentioned argument favoring adoption of this amendment proposal is the impact it would have on re-establishing federalism as the guiding principle in family law (Ryan, 2013). Other commonly recurring arguments in favor include: polls suggesting most American place a high value traditional notions of marriage and would like to see the sanctity preserved, concern that that marriage is being redefined from the judicial benches of America by activist liberal judges and international precedence in the form of similar language found in the constitutions of foreign nations (Anderson, 2015).

Those are lofty political ideals used by supporters to justify their cause. Of course, the unspoken but unavoidable pro of such a measure for many is based far less on legal and political issues. The stimulus behind the moral outrage that has been transformed into a legal issue is old-fashioned prejudice against homosexuality and other alternative lifestyles which the amendment would effective delegitimize.

The most substantial argument against the Marriage Protection Amendment is the fact that some think it needs to be proposed in the first place. The only reason that such the Constitution has been found wanting on this issue by supporters is that current statutory laws which the amendment would impact have been struck down as unconstitutional. Or, in other words, the Constitution is already clear on the subject of marriage rights that clarity is in opposition to ideology of those proposing this amendment. Therefore, the biggest con of this amendment is its irony: supporters are seeking to subvert existing Constitutional rights by changing the rules.

The real reason why the Marriage Protection Amendment should never be ratified, however, is the language it uses to define marriage: “consisting only of the union of a man and a woman.” Obviously, such a definition is irrefutably exclusionary which is why laws seeking to define it have been declared a violation of constitutional rights. Such an amendment would forever alter the landscape of gender identification and even possibly result in the requirement of DNA testing prior to couples marrying. Under the terms of this definition, is marriage the union of a man who has undergone gender reassignment to become a woman and a woman who has undergone gender reassignment to become a man? The language of this proposed amendment not only impacts the definition of union of a man and a woman it also impacts the definition of what is a man and a woman.

Moral indignation and Constitutional amendments have a history of failure. Many perfectly reasonable legal and political arguments were made in support of the amendment which came to be known as Prohibition. At heart, however, that amendment was about neither politics nor the law, but conflicting perspectives on the morality of consuming alcohol. Prohibition against alcohol should have remained in the domain of statutory law and attempting to impose a constitutional dimension resulted in a failure requiring another amendment for its repeal. History is almost certainly doomed to be repeated if moral outrage against alternative lifestyle is allowed to become a legal and political justification for using the amendment process to subvert existing civil rights.