Amendment hopes to keep marriage debate out of the courts

0 Comments | Insight on the News, June 10, 2002 | by Hans S. Nichols, | Sam MacDonald

Congress, the White House and the American people may be spectators in one of the most important issues of the day--the debate about same-sex marriage. That's the fear of a bipartisan group of legislators who introduced a constitutional amendment in the House of Representatives in May. Proponents of the Federal Marriage Amendment fret that if Congress does not take a proactive approach and amend the Constitution, same-sex marriage will be a reality sooner than anyone suspects.

"If you take gay marriage to the courts, they win. If you take it to the people, we win," says Matt Daniels, executive director of Alliance for Marriage. Worried about the civil-union laws in Vermont and a case in the Massachusetts courts, Daniels is directing an effort to safeguard the traditional definition of marriage as being between a man and a woman. "Within a year-and-a-half, federal courts will get involved," Daniels tells INSIGHT. "By then, it will be too late."

The proposed amendment formally defines marriage as the union of a man and a woman, and also empowers the states--not the courts--to determine the allocation of benefits and privileges traditionally associated with marriage. According to Daniels, the bill's language was written very carefully to give maximum leeway to the states.

"The Federal Marriage Amendment will help end current attempts to undermine traditional marriage through judicial activism in the courts," says Rep. Jo Ann Davis (R-Va.), who is cosponsoring the amendment in the House. "Our society has held true to the core beliefs espoused by marriage for generations."

To amend the Constitution, changes must pass both houses of Congress by a two-thirds majority. Then it must be approved by the legislatures of three-fourths of the states. "I don't envision a problem with the legislatures," Daniels predicts. "I'm much more worded about the U.S. Senate tinder its current leadership."

Daniels suspects that even in Vermont, the only state whose Legislature has legalized civil-union marriage for same-sex couples, the amendment would be ratified. Chairman of the Vermont House Judiciary Committee, Republican Peg Flory, agrees. She recalls that Republicans are in control of the House today largely because of voter outrage about the civil-union legislation that a Democrat-controlled Legislature approved in 2000.

But it's only a matter of time, legal scholars say, before Vermont civil-union licenses, which are available to out-of-staters, are tested in federal court. No one knows how the courts will rule when a same-sex couple demands that their own state recognize their civil union contracted under Vermont's quasi-marriage license, citing Article 4, Section 2, Clause 1 of the Constitution.

Laws such as the Defense of Marriage Act, passed in 1994, may be inadequate to deal with every possible legal challenge. In any event, the Human Rights Campaign (HRC), a gay and lesbian advocacy group, wouldn't mind having the issue resolved in the courts--and sooner rather than later. "Civil rights and equality have long been interpreted by the courts in this country," says Seth Kilbourn, the national field director for HRC.

Daniels likes to couch the amendment as a defensive and preventive measure, noting that the wording makes many concessions to states rights. In addition, he is quick to point out that "gays and lesbians have a right to live as they choose. They don't have a right to redefine marriage for our entire society.... But when the courts decide, marriage loses."