The other shoe dropped on the Federal Marriage Amendment (FMA) when five Republican Senators introduced it in that body Nov. 25. The anti-gay marriage constitutional amendment was first introduced in the House some 18 months ago and now has 108 cosponsors.
The lead sponsors in the Senate are Wayne Allard (Colorado), Sam Brownback (Kansas), Jim Bunning (Kentucky), James Inhofe (Oklahoma), and Jeff Sessions (Alabama).
Unlike their House colleagues, at this point the Senators have not enlisted any Democratic sponsors, or for that matter, any Republicans who are not extremely conservative. This suggests tough going to reach the two-thirds majority necessary to pass a constitutional amendment.
Allard called his proposed amendment ‘a starting point for a more comprehensive discussion’ and not necessarily the final format that an amendment might take.
‘The Constitution is a masterpiece of liberty and freedom. Corrupting this precious document to score cheap political points is frankly obscene,’ said Patrick Guerriero, executive director of Log Cabin Republicans. ‘True conservatives would never alter our Constitution for political purposes.’
Log Cabin has gone on record as saying that it could not endorse or support a politician who backs the FMA.
Gay conservative Andrew Sullivan has pointed out that the current wording of the FMA, should it pass, raises a very real legal question of whether churches that perform same-sex marriages would be violating the Constitution. The issue of separation of church and state is not an insignificant matter.
‘This is a misuse of the Constitution—a document that since the Bill of Rights, has been amended sparingly and only to expand individual rights and protections,’ said Elizabeth Birch, executive director of the Human Rights Campaign (HRC).
‘This amendment goes much further than denying the right to marry, it would also deny tax-paying Americans things as fundamental as Social Security survivor benefits and the right to visit a loved one in the hospital.’
Many legal scholars agree with Birch that the FMA would prohibit civil unions and other recognition of same-sex unions that did not carry the title of marriage. Mitch Daniels, head of the Alliance for Marriage and the chief proponent of the FMA, says that it would not.
But other social conservatives want to make sure that it does. They are toying with language that would effectively ban all such recognition. It is a source of some turmoil among those groups on the far right.
‘This amendment has very little to do with marriage as such; and everything to do with homosexuality,’ said Sullivan, writing in The New Republic Online. ‘If the social right wanted to shore up marriage, they could propose an amendment tightening up divorce laws … but they haven’t.’
‘The amendment is simply—and baldly—an attempt to ostracize a minority of Americans for good. It is an attempt to write them out of their own country.’
‘Amending the Constitution to define marriage as between a man and a woman would be unwise for two reasons,’ George F. Will wrote in his syndicated column published in the Washington Post Nov. 30.
‘Constitutionalizing social policy is generally a misuse of fundamental law. And it would be especially imprudent to end state responsibility for marriage law at a moment when we require evidence of the sort that can be generated by allowing the states to be laboratories of social policy.’
He joins a growing list of the nation’s most prominent conservative commentators who are opposed to the FMA. Some, notably David Brooks and William Safire, have even acknowledged positive aspects to extending civil marriage to same-sex couples.
Meanwhile in Massachusetts, former Republican governor of Massachusetts William Weld told the Boston Globe, the court’s decision ‘Is a thunderbolt, but a thunderbolt correctly heard … . It reminds me of some of the early civil-rights cases, when the Warren Court all but said, somebody has to do this.’
The four Catholic Bishops of Massachusetts disagree. In a letter read from the pulpit on Nov. 30, they called the court’s decision ‘a national tragedy’ that will only ‘erode even further the institution of marriage.’ They urged members of the legislature to delay implementation of the ruling.
One factor that may limit or at least delay a broader national impact of same-sex marriage in Massachusetts is that the current law precludes non-residents from marrying if that union would not be recognized in their home state.
But the whole question of who is a ‘resident’ is murky and not defined by law for purposes of marriage. Traditionally town clerks have simply accepted the word of those applying for the license. ____
The Massachusetts Supreme Judicial Court decision on marriage rights for gays continues to reverberate throughout that state and the nation. And the tone has been surprisingly positive for the GLBT community.
A Boston Globe/WBZ-TV poll of 400 people showed that 50% agreed with the decision and 38% opposed it.
A parallel poll conducted by the Boston Herald and published Nov. 23 shows similar numbers: 49% back legalizing gay marriage while 38% opposed it.
The Globe poll showed even stronger opposition (53%) to amending the state constitution to prohibit same-sex marriage and weaker support (36%) for doing so.
The demographics of the responses mirrored those seen in national polls, with younger people and women more supportive of gays while older people and men were more likely to hold negative views. However, nationally, the majority of those responding to a Pew poll were opposed to gay marriage.
Massachusetts Attorney General Thomas F. Reilly, a Democrat, claimed to see some wiggle room in the court’s decision. He said the legislature could enact civil unions, steps short of marriage, and still be in compliance with the decision. It was an opinion shared by Republican Gov. Mitt Romney.
The legal establishment responded immediately and forcefully. On Nov. 22 the Massachusetts Bar Association, the Boston Bar Association, the Women’s Bar Association of Massachusetts, and a former state attorney general disagreed. ‘I just don’t see any room in the opinion for the interpretation that the Governor and Attorney General espouse,’ said Richard C. Van Nostrand, president of the Massachusetts Bar.
A fitting counterpoint came from that paragon of family values, Lyle Menendez, in prison for life for murdering his parents. On Nov. 20, in a service conducted over the phone, he married Rebecca Sneed. Conjugal visits are not allowed for lifers, so the marriage will not be consummated.
President George W. Bush reiterated his belief that marriage is between a man and a woman. But he continued to defer going that further step to embrace a constitutional amendment being proposed by some on the far right.
‘It’s time to consider what actions we need to take to safeguard traditional marriage—including the possibility of a constitutional amendment,’ Orrin Hatch, R-Utah, chairman of the Senate Judiciary Committee told the Desert Morning News. However, he stopped short of endorsing that route. He said passing an amendment ‘is easier said than done.’
The major Democratic candidates for president wasted no time denouncing discrimination against gays, but they just as quickly dismissed the court’s remedy for that discrimination and affirmed their belief in marriage as being between a man and a woman.
Slate’s chief political correspondent William Saletan described the Democrats this way: ‘Faster than you can say ‘family values,’ the major Democratic candidates for president are running away from the Massachusetts Supreme Court’s nullification of the state’s ban on gay marriage. While pleading for tolerance, they’re falling over themselves to repudiate gay marriage.’
Frontrunner Howard Dean even managed to entirely avoid using the word ‘marriage’ in his press release on the subject, even while touting his signing of a civil unions bill in Vermont.
‘The Democrats have done an appallingly bad job of running round in circles on this,’ gay playwright Tony Kushner told The New York Times. ‘I think they should say, ‘Listen: there’s the marriage you have in church, and there’s the marriage you have in City Hall with a license, and those laws should govern all people who get married. It has nothing to do with God.”
Conservative honcho Grover Norquist, head of Americans for Tax Reform, said, ‘If Teddy Kennedy thought this was a huge winner issue for him, he’d be on TV saying we must talk about this from now to November. If Sam Brownback thought this was a huge issue, he’d be out holding press conferences saying the Democrats are toast. But neither team is jumping out.’
Conservative David Brooks, writing in The New York Times Nov. 22, reviewed the facts that ‘marriage is in crisis because marriage, which relies on a culture of fidelity, is now asked to survive in a culture of contingency.’
‘… We’re moral creatures with souls, endowed with the ability to make covenants, such as the one Ruth made with Naomi: ‘Where you go I will go, and where you stay I will stay. Your people will be my people and your God my God. Where you die I will die, and there I will be buried.”
‘The conservative course is not to banish gay people from making such commitments. It is to expect they make such commitments. We shouldn’t just allow gay marriage. We should insist on gay marriage. …’
‘Now along come gay couples to rescue marriage from social and economic irrelevance, casting a queer eye on a straight institution. They seek it for pecuniary reasons—issues such as estate taxes etc.—but also because they seem to be among the last romantic,’ wrote liberal columnist Richard Cohen in the Washington Post. ‘The odd thing about the opposition to gay marriage is that if the opponents were not so blinded by bigotry and fear, they would see that gay men and lesbians provide the last, best argument for marriage: love and commitment.’
Noted civil-rights historian David J. Garrow, writing in the Nov. 21 edition of Newsday, compared the legal struggle of gays with that of Blacks. He closed by noting that if the court’s 180-day schedule is held to, ‘the first same-sex marriage licenses in American history can be issued on May 17, 2004—the 50th anniversary of Brown v. Board of Education [the landmark school desegregation decision by the U.S. Supreme Court]. That’s quite an appropriate coincidence, isn’t it?’ —————————————-