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37 Hastings Const. L.Q. 65 (2009-2010)
Theocracy in America: Should Core First Amendment Values Be Permanent

handle is hein.journals/hascq37 and id is 71 raw text is: Theocracy in America: Should Core First Amendment Values Be Permanent? by MIRIAM GALSTON* The ultimate measure of a constitution is how it balances entrenchment and change. Erwin Chemerinsky' Introduction: The Threat of Theocracy in America The Supreme Court's decision in Lawrence v. Texas,2 holding a Texas statute criminalizing consensual sexual relations between same- sex individuals as unconstitutional, unleashed a storm of protest. Those most alarmed feared the Court's reasoning could be used to challenge laws prohibiting same-sex marriage, polygamy, or worse. The decision renewed calls for a constitutional amendment to define marriage as the union of one man and one woman.' Some proposals for a marriage amendment would, in addition, deny public entities the * Associate Professor, The George Washington University Law School. I am grateful to Bruce Ackerman, Mary Cheh, Bill Galston, Sandy Levinson, Dick Pierce, Catherine Ross, and Mike Seidman, who were gracious enough to read earlier versions of this Article and make thoughtful suggestions for improving the argument. As always, Dean Fred Lawrence and The George Washington University Law School generously supported my research and writing. I owe much as well to the fine and unflagging research assistance of Matthew Mantel, Jen McClure, Rachel Bohlen, Kaitlin Dunne, Rosemary Englert, and Beth Alyson Yenis. 1. Erwin Chemerinsky, Amending the Constitution, 96 MICH. L. Rev. 1561, 1561 (1998). 2. Lawrence v. Texas, 539 U.S. 558 (2003). 3. See id. at 590 (Scalia, J., dissenting) (asserting that the holding jeopardizes previous rulings upholding state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.). 4. See H.R.J. Res. 56, 108th Cong. (2003) (defining marriage in the United States as consisting only of a union between one man and one woman); Federal Marriage Amendment, S.J. Res. 40, 108th Cong. (2004). Similar proposals have been introduced in each successive year. See, e.g., H.R.J. Res. 22, 110th Cong. (2007). All versions have failed to pass either house. See Edward Stein, Past and Present Proposed Amendments to the United States Constitution Regarding Marriage, 82 WASH. U.L.Q. 611 (2004).

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