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Senate Holds Hearings on Judicial 'Activism'
by Bob Roehr

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The Massachusetts Supreme Judicial Court decision on gay marriage was the subject of a hearing by the U.S. Senate Judiciary Committee on March 3. Its title, 'Judicial Activism vs. Democracy,' was an indication of how subcommittee chairman John Cornyn, R-Texas, viewed the subject.

'Renegade judges (and some local officials) are attempting to radically redefine marriage. Marriage laws have already been flouted in Massachusetts, California, New Mexico, and New York' and lawsuits on the subject have been filed in 13 other states, Cornyn said in his opening remarks. 'This is no longer a state issue, this is a national issue ... requiring a national solution.'

'Two words: activist judges,' are the reason why a constitutional amendment to ban same-sex marriages is needed. Cornyn asserted, 'The institution of marriage was not created to discriminate or oppress—it was established to protect and nurture children.'

That claim—that marriage was all about children—would be repeated incessantly by foes of gay marriage, most of whom emphasized a religious connection with marriage.

It does not square with the ancient historical roots of marriage as a property claim of the husband over one or more women, nor with the last half century of marriage law in the U.S. that includes children but also continues to expand far beyond that limitation.

The social conservatives offered no new arguments in their testimony and little more than feelings and anecdotes of the destruction that they believe gay marriage will wreck upon American society

Hilary Shelton, director of the Washington Bureau of the National Association for the Advancement of Colored People (NAACP), said they 'strongly oppose the so-called Federal Marriage Amendment (FMA) and all other proposals that would use the Constitution to discriminate and restrict rather than expand and protect the rights for any and all persons.'

The NAACP has not taken a position on the question of marriage rights for same-sex couples.

'We strongly oppose the notion of addressing this issue of social policy in our nation's governing document,' said Chuck Muth, president of Citizen Outreach, a conservative organization with a libertarian bent.

He downplayed an absolutist notion of democracy, saying, 'Even if 85% of people polled thought that bringing back slavery or taking away the right of women to vote in a particular state was a good idea, the Constitution simply doesn't permit it.'

Muth also fears that 'this effort could be the first step toward the federalization of family law,' an area heretofore solely the jurisdiction of the states. 'Under the guise of a homosexual crisis, can we expect a Federal Department of Family Affairs at the cabinet level by decade's end?' He used the example of education, which until recently had been seen as a strictly local and state responsibility.

Yale law professor R. Lea Brilmayer dismissed fears of social conservatives that the full faith and credit clause of the Constitution would be used to impose gay marriage upon the country. 'To my knowledge, [that clause] never in a single case been read to force one state to recognize a marriage entered into in another state, that was contrary to the local policies of the [second] state.'

She said the 'public policy doctrine' gives the state a right to not enforce a legal action, such as marriage, that is entered into in another state. With regard to marriage, there is more than a century of case law recognizing that states do not have to recognize other state laws when it comes to questions of first cousins marrying, age of consent, recent divorces, and other issues.

'This problem is as old as the hills, and it's not much of a problem. It's never caused any type of constitutional crisis,' said Brilmayer. 'That leaves me scratching my head and thinking what is all of this about?'

Responding to a question from Sen. Russ Feingold, D-Wisc., Brilmayer said there has never been a constitutional amendment 'to correct one state interpreting its own law in a way that people outside the state think to be erroneous.'

Feingold was troubled by the labeling of the hearing 'because it is not only a gross mischaracterization of the current legal landscape, but it sounds as though advocates of a constitutional amendment think that judges should have no role in our constitutional democracy.'

In proposing a constitutional amendment now, and foreclosing options to the states, its proponents are the ones 'who threatened to take this issue away from the American people ... . Do we want to launch what amounts to a pre-emptive strike on our Constitution?' Feingold did not.

Richard Durbin, D-Ill., defended the 'judicial activism' that struck down racial segregation in education, laws that banned inter-racial marriage, and allowed for contraception and family planning. 'Does anyone argue that these did not promote democracy in America?'

'If we are going to adopt the premise that religious values should enshrined in the Constitution, then I think we are moving into perilous territory,' said Durbin. 'We get into dangerous territory, when we go beyond the question of legality and into sanctity.'

Sen. Ted Kennedy, D-Massa., said, 'By endorsing this shameful proposed amendment, in a desperate tactic to divide Americans in an attempt to salvage his faltering re-election campaign, President Bush will go down in history as the first President to try to write bias back into our Constitution.'

'Too often, this debate over the definition of marriage and the legal incidents of marriage has overlooked the very personal and loving family relationships that would be prohibited by a constitutional amendment. Increasingly large numbers of children across the country today have same-sex parents. What does it do to these children and their well-being when the President of the United States says their parents are second-class Americans?'

Speaking with reporters after the hearing, Cornyn said he anticipates having another hearing on language of a possible constitutional amendment at the end of the month when Congress returns from its March recess. A handful of possible amendments have been mentioned. As chair of the subcommittee, he has maintained a position of neutrality on the options.

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