MARRIAGE AMENDMENT IS THE DEMOCRATIC WAY: Sen. Orrin G. Hatch

"I think it is inevitable now."
--Patricia Logue, LAMBDA Legal Defense Fund, on nationalizing same-sex marriage.

In 1996, Senator John Kerry was one of only 14 senators, all of them Democrats, to oppose passage of the Defense of Marriage Act (DOMA). The bill was unnecessary, he said, since "no State has adopted same-sex marriage." Well, the future is now, and Sen. Kerry's own state of Massachusetts is leading the way. Last November, in its Goodridge v. Dept. of Public Health decision, the Supreme Judicial Court of Massachusetts declared same-sex marriage to be the policy of the commonwealth. Today, same-sex-married couples live in 46 states and activists are implementing a well-funded, multifaceted, and highly coordinated legal assault on traditional marriage. The inescapable conclusion is that, absent an amendment to the U.S. Constitution, same-sex marriage is coming whether you like it or not.

Next week, the Senate will vote on a Federal Marriage Amendment. In a series of hearings in several different Senate committees, witness after witness confirmed what the American people already know. Traditional marriage is the single best arrangement for raising children and forming citizens. For that reason, government may certainly select this time-proven institution for special preference and protection and a high burden exists for those who would introduce radical and untested substitutes. And it should be the American people who make such choices, not judges imposing their own preferences without the people's consent. ...

When allowed to choose, legislatures protect marriage rather than dismantle it. Therefore, advocates of same-sex marriage resort to strategies involving the executive or judicial branches. ...

...In California, even though 60 percent of voters recently approved a statewide ballot initiative to maintain traditional marriage, the California supreme court is now considering the constitutionality of that democratic action. In Nebraska, the American Civil Liberties Union has challenged a duly passed state constitutional amendment that defines marriage as between a man and a woman.

Second, there will likely be a federal court challenge to state marriage laws, similar to the challenges that have eliminated state laws against certain sexual activity.

Third, a federal lawsuit in Florida is challenging DOMA's traditional definition of marriage for purposes of federal benefits.

Fourth, same-sex couples from across America who obtained marriage licenses in places such as San Francisco and Massachusetts have gone home and will try to change their home-state's policy by forcing it to recognize their union. They will cite the Constitution's requirement that states give "full faith and credit" to other states' judicial proceedings.

And fifth, look for lawsuits should states refuse to recognize these imported unions by citing their own opposition to same-sex marriage or DOMA's protection against recognizing non-traditional unions from other states. ...

"DOMA does violence to the spirit and letter of the Constitution."
--Senator John Kerry, The Advocate, September 3, 1996

"The Defense of Marriage Act is the law of the land today."
--Senator John Kerry, February 26, 2004

The very people who said in 1996 that DOMA is unconstitutional tell us today that DOMA is good law, solid enough to protect marriage without amending the Constitution. While this legislative protection should be enough, recent court rulings and other developments have convinced most analysts--either grudgingly or enthusiastically--that the DOMA solution will not last.

States such as Louisiana, South Dakota, West Virginia, and Nebraska have all acted to protect traditional marriage, but each of those states now has same-sex resident couples who were married in another state. Will those marriages be recognized or dissolved? DOMA sought to provide the states with a blanket right to refuse recognition of same-sex unions. The Goodridge decision, however, exposes its potential deficiencies. First, a court could conclude that, even though the Constitution gives Congress a role, it may not go as far as it did in DOMA. When DOMA was passed, Harvard law professor Laurence Tribe expressed the "unequivocal" conclusion that "Congress possesses no power under any provision of the Constitution to legislate [as it does in DOMA] any such categorical exemption from the Full Faith and Credit Clause of Article IV." ...

To permit a handful of liberal judges to force this radical change on the entire nation is wholly inconsistent with the right of people to govern themselves. This debate over same-sex marriage is fundamentally a question of who decides important matters of public policy in a constitutional democracy. Judges who usurp the role of legislatures by imposing their preferred policies on the people dramatically undermine democracy's vitality and legitimacy. I fear that we have lost sight of this fundamental principle.

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posted by Eve at 1:11 PM | link

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