On March 23, the Senate Judiciary Committee held a hearing on a proposed amendment to the Constitution that states, “Marriage in the United States shall consist of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.” Earlier this month, the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Property Rights examined recent judicial rulings concerning gay marriage and their impact on traditional marriage laws in the states (see The Source, 3/5/04).
Contending that most Americans believe that the traditional institution of marriage is worthy of protection, Subcommittee Chair John Cornyn (R-TX) argued, “The only way for people of good faith to defend democracy and the traditional institution of marriage against this judicial onslaught based on false charges of discrimination is a constitutional amendment.”
Subcommittee Ranking Member Dianne Feinstein (D-CA) disagreed, pointing out that an amendment to the Constitution is unnecessary. She stated, “The courts have long held that no state can be forced to recognize a marriage that offends a deeply held public policy of that state. States, as a result, have frequently and constitutionally refused to recognize marriages from other states that differ with their public policy.” Sen. Feinstein further explained, “Polygamous marriages, for instance, even if sanctioned by another state, have consistently been rejected. Marriages between cousins or other close relatives have also been rejected by some states, even if those marriages are accepted in other parts of the country.”
A number of Members of Congress testified before the committee. Rep. Barney Frank (D-MA) explained that the Massachusetts Supreme Court ruled in November that same-sex couples could not be denied the right to marry under the state constitution. The court’s decision takes effect on May 17. Noting that the state may hold a referendum on the issue, Rep. Frank said that if a majority of voters choose to allow same-sex marriages, the proposed amendment would overturn the decision.
Sponsor of the Senate amendment (S. J. Res. 30), Sen. Wayne Allard (R-CO) pointed out that Congress acknowledged the importance of marriage in enacting the Defense of Marriage Act (DOMA) of 1996 (P.L. 104-199), which denies federal recognition of same-sex marriages, and allows states to ignore same-sex marriages allowed in other states. Citing same-sex marriages that have taken place in San Francisco and Oregon, he stated, “It seems to me that there are long-term implications for both Federal DOMA and the rights of states to define unions through either state DOMA or the state constitutional amendment process. It is clear to me that we are headed to judicially mandated recognition of same gender couples regardless of state or federal statute.”
Calling the Constitution a “special, almost sacred document,” Rep. John Lewis (D-GA) stated, “The Constitution is the document that defines the framework of government and protects our rights. It is NOT a place for mandating social policies on individual states or forcing individuals to reconcile their religious beliefs with such a sensitive and personal issue. This amendment will deny states the right to determine their own marriage laws, assign one group of Americans to second-class status, and deny children of gay parents the stability and legal protections that can only be offered through marriage.”
Testifying on behalf of the Black Ministerial Alliance of Greater Boston, Reverend Richard Richardson voiced his support for a constitutional amendment. “We need to be strengthening the institution of marriage, not diluting it,” he argued. “This discussion of marriage is not about adult love. It is about finding the best arrangement for raising children, and as history, tradition, biology, sociology, and just plain common sense tells us, children are raised best by their biological mother and father.”
Insisting that the amendment would have “far sweeping consequences for the laws of our states,” Phyllis Bossin of the American Bar Association stated, “In addition to barring all state courts and legislatures from taking steps to permit same-sex couples to enter into civil marriage, it appears to prohibit states from extending to unmarried couples legal protections comparable to those accorded to married spouses.” Ms. Bossin also noted the impact the amendment could have on children raised by same-sex couples. “Without a legal relationship to both of their functional parents, these children may not be entitled to child support from the nonlegal parent; they are not entitled to inherit through the nonlegal parent in the absence of a will; they may not be entitled to survivor benefits; and they may be prevented from ever seeing this parent, should the parents separate or the biological parent die.”
Katherine Shaw Spaht, a law professor at Louisiana State University, argued that a constitutional amendment would allow the American people, through their elected representatives, to define marriage as a union between a man and a woman. “If the American people are not permitted to decide the meaning of the word ‘marriage,’ the judiciary, state judges, and ultimately the United States Supreme Court, will decide for us. And, among the judiciary, many individual judges at the state and federal level, are openly hostile to traditional marriage and the deeply held convictions of the majority of the American public,” she stated.
