By U.S. Sen. Jim Talent

The U.S. Senate has begun debating an amendment to the Constitution that would define marriage as being between a man and a woman. Unfortunately, like so many other things in the Senate, the debate was cut short due to a filibuster.

In order to break the filibuster, 60 votes were necessary to bring the amendment to the floor for an up-or-down vote at which point it would have to be approved by two-thirds of the Senate. In all, 48 senators supported the amendment by voting against the filibuster, and 50 senators voted against changing the Constitution to protect traditional marriage.

I'm a cosponsor of the Federal Marriage Amendment, and after the vote I told others who support it not to lose faith. This is just the beginning of the effort to protect traditional marriage and we need to continue working to build support for this effort. In fact, we should be pleased by the number of votes we did get, because there were a substantial number of senators who, although they voted against the measure, at least said they supported doing something, if necessary, at some point in the future.

I said during the debate on the Senate floor that this issue is too important not to act now. The courts of this country are engaged in a process by which they are going to force the people, whether they like it or not, to accept a fundamental change in the basic building block of our society.

Marriage is our oldest social institution. It is older than our formal religions, our system of property, our system of justice, our political institutions and our Constitution. Marriage may be the most important of all these institutions because it represents the accumulated wisdom of literally hundreds of generations over thousands of years about how best to lay the foundation of a home in which we can raise and socialize our children.

Activist judges, who specialize in taking issues away from the people and deciding those issues instead, intend to make traditional marriage a thing of the past. Their decisions, like the one that allowed Massachusetts clerks to begin issuing marriage licenses to same-sex couples, and the aggressive political and legal strategy driving them, make clear that protecting traditional marriage will require amending the United States Constitution.

When I first heard about the Massachusetts Supreme Court decision, I asked myself: What about everybody else's rights? What is the most basic political right people in this country, and throughout the free world, have? What political right have the people in this country for hundreds of years fought and died for? We see people around the world now heroically fighting for this. The first and most basic right is the right of the people to govern themselves.

This crisis requires a constitutional solution for at least three reasons. First, amending the U.S. Constitution is the only way of reigning in the activist judges who will otherwise undermine traditional marriage. Neither judicial self-restraint nor the separation of judicial from legislative power is enough. Nor, it appears, are explicit bans on legislation by judges in state charters. The Massachusetts Supreme Judicial Court's decision that same-sex couples may wed is a legislative act openly defying the Massachusetts Constitution's edict that judges "shall never exercise the legislative" power.

Second, the 1996 Defense of Marriage Act (DOMA) will no longer effectively protect traditional marriage. While the Constitution requires that states give each other's judicial proceedings "full faith and credit," it also lets Congress make exceptions. Supported by 79 percent of House members and 85 percent of Senators and signed by President Clinton, DOMA guarantees that one state need not recognize another's non-traditional union. Even so, federal and state court decisions since DOMA have made legal analysts, enthusiastically or grudgingly, concur that DOMA itself likely will not survive a court challenge before activist judges.

Third, amending the Constitution of the United States is the only way for the people of the United States to take this issue back. "We the people" established the Constitution, and only we can rightfully amend it by the single process outlined in the charter, a process that excludes the judicial branch. No amendment, on any subject, becomes part of the Constitution unless supported by two-thirds of Congress and three-fourths of the states. Amendments by judges, in contrast, defy the people and lack their consent.

The people have the right to govern themselves. Activist judges take away that right, sapping democracy's legitimacy and vitality. When courts deny the people the right to decide cultural issues for themselves, they undermine both the freedom and the opportunity to form consensus provided by self-government. Americans on both sides of the marriage debate deserve to have their voice heard and the potential to make it effective. Such civic participation in elections, through legislatures, or in amending the Constitution, is an antidote to judicial activism. Defending the people's right to govern themselves generally, and protecting traditional marriage specifically, requires responding to this judicial activism by amending the United States Constitution.

Senator Jim Talent (R-Mo.) was elected to serve Missouri in the U.S. Senate in November 2002. Previously he served in the U.S. House of Representatives (1993-2001) and the Missouri House (1985-1992).