On March 3, the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Property Rights examined recent judicial rulings concerning gay marriage, their impact on traditional marriage laws in the states, and the need for a Constitutional amendment defining marriage as a union between a man and woman.
Supporting a Constitutional amendment, Chair John Cornyn (R-TX) pointed out that Congress acknowledged the importance of marriage in enacting the Defense of Marriage Act (DOMA)(P.L. 104-199), which denies federal recognition of same-sex marriages, and allows states to ignore same-sex marriages allowed in other states. “But words are not enough to combat judicial defiance,” he argued. “If elected representatives are to retain their relevance in a democracy indeed, if we are to remain faithful to our national creed of government of the people, by the people, and for the people words must be joined by action.”
Calling the debate “a divisive political exercise in an election year,” Ranking Member Russ Feingold (D-WI) pointed out, “Our nation has a long tradition of amending the Constitution only as a last resort, when all other means to address an issue have been exhausted and found inadequate. With only one state having recognized same-sex marriage, and no state having ever been forced against its will to recognize a same-sex marriage from another state, we are miles away from reaching that point on the issue of gay 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.”
Hilary Shelton of the NAACP argued that the proposed congressional action “would, for the first time, use an amendment to the Constitution as a tool of exclusion.” He went on to explain that the marriage amendment “is so extreme that, in addition to prohibiting any state government from honoring domestic contractual agreements between persons of the same gender in their states, it would also bar state and local governments from providing basic protections [to] citizens of the same gender and their families, even such fundamental protections as hospital visitation, inheritance rights, predetermined child custody rights and health care benefits.”
Nebraska Attorney General John Bruning explained that his office is currently defending the portion of Nebraska’s constitution that defines marriage as a union between one man and one woman. “My office moved to dismiss the suit, but last November, the Court denied our motion to dismiss. The language in the Court’s order signals that Nebraska will very likely lose the case at trial,” he stated. Mr. Bruning concluded, “In short, this country is heading down a path that will allow the judiciary branch to create a national policy for same-sex marriages…The ultimate question for you, as members of the United States Senate, is whether you believe this issue should be resolved by judges or by the American people through you, their elected representatives.”
Lea Brilmayer, a professor at Yale Law School, pointed to the Full Faith and Credit Clause of the Constitution as proof that an amendment is not necessary. She explained that the clause was written precisely for the purpose of reconciling conflicting state decisions and stated, “The Full Faith and Credit Clause has never been understood to require recognition of marriages entered into in other states that are contrary to local ‘public policy.’ The ‘public policy’ doctrine…frees a state from having to recognize decisions by other states that offend deeply held local laws.” As examples of marriages that have been denied recognition in other states, Ms. Brilmayer cited marriages between cousins, or between uncles and nieces; polygamous marriages; and marriages between individuals who have very recently divorced. “It is obvious that the interstate recognition of same-sex marriages implicates the same legal principles and requires analogous lines of reasoning,” she concluded.
