September 20, 2003
Column #1,151
The Need for a Federal Marriage Amendment
WASHINGTON – Three
U.S. Senators announced their support for a Federal Marriage Amendment this
week. In the House the proposed Amendment has 86 sponsors. Why?
Sen. Rick Santorum,
R-PA, said, "I will support whatever it takes to preserve the institution
of marriage. Court decisions are expected to be handed down by state courts
which will establish a right to same-sex marriage. That will trump the
federal DOMA (Defense of Marriage Act). The only way to avoid that is a
Constitutional amendment."
DOMA was passed by
Congress seven years ago by huge margins (85-14 in the Senate, 342-76 in the
House). It defines marriage as "a legal union between one man and one woman
as husband and wife." And it provides that states need not recognize a
same-sex marriage performed and valid in another state. Furthermore, 37
state DOMAs are now law.
What sparked passage
of DOMAs were court cases in Hawaii and Alaska that declared state marriage
laws unconstitutional because they did not allow gay marriages. While voter
referenda in both states overturned the court decisions, Vermont's Supreme
Court literally ordered the state legislature to provide the benefits of
marriage to same-sex couples, and the legislature enacted America's first
civil-union statute. It is same-sex marriage in all but name. California
recently passed a similar law that Gov. Gray Davis will sign. The
Massachusetts Supreme Court is considering a similar case which could
actually allow gays to marry.
Thousands of same-sex
couples have had their relationship recognized in Vermont, 80 percent of
whom came from other states. Some of them are filing suits to have their
own state recognize the "marriage." The Constitution has a "Full Faith and
Credit" provision which requires states to recognize the valid laws of other
states.
While DOMAs are
designed to prevent that, both liberal and conservative experts think they
will be overturned by the Supreme Court. In its recent case overturning the
Texas sodomy law, Lawrence v. Texas, the court went far beyond declaring
homosexual acts legal. It said, "Liberty presumes an autonomy of self that
includes freedom of thought, belief, expression and certain intimate
conduct."
It added, America's
"laws and tradition afford constitutional protection to personal decisions
relating to marriage, procreation, contraception, family relationships,
child rearing and education." It demurred that the case "does not involve
whether the government must give formal recognition to any relationship that
homosexual persons seek to enter."
In his dissent,
Justice Scalia quoted that last sentence and tartly wrote, "Do not believe
it."
Tony Perkins, the new
president of the Family Research Council, commented, "The question at hand
is how best to prohibit the courts from imposing so-called `gay marriages'
on our nation. Recent polls show that a growing majority of Americans are
supportive of a Federal Marriage Amendment, and for good reason. Far too
often, our courts are ignoring the will of the people and that of State
Legislatures in order to impose a liberal political agenda on America. And
now, with the growing likelihood that a U.S. Court will declare a right to
same-sex marriage, the Federal Marriage Amendment has become a necessity."
Predictably, Sen. Ted
Kennedy disagreed at a hearing last week, noting that there have been only
17 Amendments to the Constitution in two centuries, which generally were to
"expand and protect people's rights, not to take away or restrict their
rights." Churches have the freedom to decide who they are to marry. "Far
from upholding religious freedom, the proposed amendment would undermine it
by telling churches they CAN'T consecrate same-sex marriages, even though
some churches are now doing so." The Episcopal Church sanctioned them
recently.
The proposed amendment
is simple: "Marriage in the United States shall consist only of the union of
a man and a woman. Neither this constitution or the constitution of any
state, nor state or federal law, shall be construed to require that marital
status or the legal ingredients thereof be conferred upon unmarried couples
or groups."
Most experts believe
that the amendment would invalidate Vermont and California laws that are
virtually equivalent of marriage.
However, passage of a
Constitutional amendment is supremely difficult. It requires a two-thirds
vote in both the House and Senate and must be ratified by three-fourths of
the states.
While a few Democratic
Congressmen have joined mostly Republican sponsors in the House, thus far,
only Republican Senators have signed on.
However, if the
Massachusetts Supreme Court legalizes same-sex marriages, Democrats would
oppose the Marriage Amendment only at their peril of re-election.
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