Odd couples: the Defense of Marriage Act will firm up the authority of the states to reject gay marriage

National Review, August 12, 1996 by Holly Arkes

### ARKES, HADLEY

IF the old Ed Sullivan Show were still on the air, somewhere between Senor Wences, the ventriloquist, and the seal playing "The Bells of Saint Mary's" on the auto-horns, some room would have to be made for Barney Frank. But displaced, in our time, from his proper venue, he plays mainly in the cabarets supplied by the House Committee on the Judiciary. This spring, the occasion was supplied by the Defense of Marriage Act, a measure that was designed to head off gay marriage, just as the courts were preparing to deliver that gift to the country. As it turned out, there are several hundred references in the federal code to spouses, or the benefits flowing to spouses, and so the Congress could make a modest, telling point, without needing to tread on the jurisdiction of the states. The Congress would merely stipulate that the term "marriage," in the federal code, "means only a legal union between one man and one woman as husband and wife." The simplest, sparest of moves; yet it would send a message to the courts, and if delivered, to gay activists, a reproach that could not go unnoticed.

It did not go unnoticed, in any layer of its significance, by Congressman Frank, who was moved along the scale of his repertoire from mock-tragic to sneering satire. But everything was played in the key of bemused incredulity, with an undertone of outrage: Were he and his partner, "Herb," settled, domesticated couple that they were, really imperiling the marriages of people in their neighborhood? Had there been some decline in the attraction between the sexes, so that it actually required now the endorsement of the Federal Government in order to induce men and women to couple?

But beneath the theatrics, Frank's line was predictable: The bill was not needed; therefore, it had to be nothing more than a political ploy, a desperate move to save the Dole campaign. Yet, Frank knew, as well as anyone else, that events were being pushed upon the Congress by the courts, and by a strategy of litigation by gay activists. It required no small measure of nerve on the part of people like Rep. Charles Canady (R., Fla.) to act, before the courts managed to alter radically the bearing of the laws on sexuality and marriage, while most of the public was unaware that anything was taking place.

For the past two years, the courts in Hawaii have been preparing to deliver to the country, as an unsolicited present, the novelty of gay marriage. The device for conveying that innovation to the rest of the country was the Full Faith and Credit Clause of the Constitution (Art. IV, Sec. 1). Under that clause, it would be expected that a marriage performed in Kentucky or Hawaii would be honored in Illinois, unless the latter state held a moral objection to a particular sort of marriage, expressed in its own laws or public policy. That has been evidently the case, for example, in relation to incestuous marriages. And until recently it was assumed that the states could simply assert an objection to homosexual marriage, for the same reason that states were still free to pass laws on sodomy and to express, in their policies, a moral disapproval of homosexual activity.

Yet that is precisely the point that was being called into question in a case then pending before the Supreme Court. I sought to explain, in my own testimony before the Judiciary Committee, that it was this case of Romer v. Evans which now pressed the matter on the Congress with some urgency. We will hear, of course, different accounts of that case, but in my own reading, Romer involved the right of people in their private settings to honor their own moral or religious judgments on the matter of homosexuality. If the Court denied that understanding, I argued, the decision was likely to be read by many activists among the judges so as to produce this lesson: "that a State may not incorporate in its laws or public policy an adverse judgment on homosexuality, and it may not refuse to accord to homosexuality the same standing or legitimacy that attaches to that sexuality 'imprinted in our natures."'

Those words were spoken on May 15, and the Court announced its decision in Romer v. Evans on May 20. And the result turned out to be as bad, in its precise details, as I had imagined. Ten years earlier, in Bowers v. Hardwick, the Court had not found anything in the Constitution that prevented the states from making sodomy unlawful. But as Justice Scalia observed in his dissenting opinion in Romer, "If it is constitutionally permissible for a state to make homosexual conduct criminal, surely it is constitutionally permissible for a state to enact other laws merely disfavoring homosexual conduct." The Court had now cast a pall of constitutional suspicion over any statute or executive order that implied an adverse judgment on homosexuality. And with that move, it could arm federal judges to tie up any legislation in a state that refused to honor homosexual marriages. After all, the argument might run, the state refuses to credit this marriage only because of the gender, or the "sexual orientation," of the couple. Would this not be, on its face, but another "discrimination" against people because they happen to be gays or lesbians?