Pictured Sen. Wayne Allard and Rep. Berney Frank. Photo by Bob Roehr
The U.S. Senate's third hearing on the threat of gay marriage, on March 23, was a strange mix of acrimony and ennui. In the end, it was unclear whether any movement had been made in any direction, or when the committee might again take up the issue.
Meanwhile, on Monday, the Massachusetts legislature voted 105-to-92 in favor of a state constitutional amendment to ban same-sex marriage and create civil unions instead. But the state court has said marriages must start May 17—and a state Constitutional amendment can take effect no earlier than November 2006 because it must also pass again in the next legislative session and then in a referendum by voters.
Gov. Mitt Romney is seeking an end-run around that process, asking the court's to issue a stay until voters decide. Few expect the court to do that, as it has issued strong rulings in favor of its initial decision.
In the Senate hearing last week, Sen. John Cornyn, R-Texas, chair of the Judiciary subcommittee on the Constitution, said 'The traditional institution of marriage is not about discrimination—it is about children.'
'Activist judges,' in finding that banning gay couples from marrying discriminates against them, are 'accusing ordinary Americans of prejudice, while abolishing American traditions by judicial fiat,' he said.
'The only way to save laws deemed 'unconstitutional' by activist judges is a constitutional amendment.'
Cornyn said these activists 'accuse others of writing discrimination into the Constitution, yet they are the ones writing the American people out of our constitutional democracy.'
California Sen. Dianne Feinstein, the ranking Democrat on the committee, called the Federal Marriage Amendment (FMA) 'ill-timed and ill-advised ... . It would, if enacted, become the first amendment to limit rights' and inject the federal government into the area of family law that heretofore had been the sole responsibility of the states.
She lay into a revised version of the FMA introduced only the day before [call it FMA+] by Sen. Wayne Allard and Rep. Marilyn Musgrave, both Colorado Republicans and original sponsors of the FMA.
'I think this change of language is a good indication of how controversial and complex this issue is—here, on the eve of a hearing into the text of one amendment, we see a change in language so dramatic that we are now really confronted with a different amendment altogether, with its own unique problems,' Feinstein said.
Amending the Constitution 'Is not a process best done overnight, on a moment's notice.'
Allard called the changes a minor tinkering to make his original intent more clear. Those were to define marriage as only between a man and a woman; to provide a definite role for the state legislatures in enacting other types of legal protections for same-sex couples; and to limit the judiciary.
Rep. Barney Frank was at his most combative as the second witness on the panel of experts. He said the wording of the amendment would prohibit states from offering protections such as those of civil unions and domestic-partner benefits.
'We [gay people] want to express love in the same way that you do,' said Frank. 'If I choose to associate with another man, how does that hurt you?'
'Imitation is the sincerest form of flattery. What you have with marriage, we admire it, we would like to be able to share it,' Frank said. 'If you are not prepared to make it illegal for gays to have children,' and few people are proposing that, then how can you justify not giving those children the same legal protections as their schoolmates have in their households.
He pointed to Massachusetts, where a constitutional amendment to ban gay marriage is likely to be put to the citizens to vote up or down. But a FMA would preclude that; 'If the people decide to allow it [gay marriage], you will cancel it out.'
'I oppose any amendment that seeks to write discrimination into our United States Constitution,' said Rep. John Lewis, a long-time civil-rights activist and ordained Baptist minister. Conservatives have scorned any attempt to link the Black and gay civil-rights movements.
Lewis said, 'I ask the question: Where would we be as a nation if Congress in 1954, 50 years ago, had radically amended our constitution to uphold segregation or the separate but equal doctrine? I further ask: Where would we be as a nation if Congress in 1967 made it unconstitutional for interracial couples to marry?'
'I have fought too hard and too long against discrimination based on race and color not to stand up against discrimination based on sexual orientation.'
During discussion, Allard said his intent in clarifying the language was 'to remove any doubt that we were trying to limit' a state's authority to write laws governing civil unions or domestic-partner arrangements for same-sex partners. He was simply trying to limit the actions of the courts on constitutional matters.
Sen. Dick Durbin, D-Ill., recalled the oath of office he had taken 'to uphold and defend the Constitution of the United States.' He was more than troubled by the fact that changes they were discussing 'had been delivered to us less than 24 hours ago.'
'I disagree that they are just technical changes,' he said. Durbin interpreted the phrase 'or the legal incidence of marriage' to include health insurance coverage through domestic-partner type arrangements or benefits programs of private employers.
He wondered why the words 'unmarried couples or groups' had been deleted, and the amendment no longer banned polygamy. He asked whether traditional marriage includes polygamy? Does it bar interracial marriage? He lamented that the sponsors of the bill were not present to explain their intent.
Sen. Feinstein thought the FMA+ would stand existing principles of governance on their heads by 'giving the legislatures more authority than the [state] constitution.' She found it 'puzzling' that the proposed FMA+ 'allows general law to trump the constitution. I believe this is unprecedented.'
Cass R. Sunstein, a professor at the University of Chicago Law School agreed, the FMA 'shows contempt' for the federal process.
Sunstein believes, if the FMA+ were to become part of the U.S. Constitution, a ballot initiative passed by the voters of California to allow gay marriage would be legal if it took the form of a common law, but it would be unconstitutional under the U.S. Constitution and FMA+ if it took the form of an amendment to the California Constitution.
Phyllis Bossin testified for the American Bar Association as chair of its section on family law. She said they oppose 'any constitutional amendment that would restrict the ability of a state to protect the rights of children by determining the qualifications for civil marriage between two persons within its jurisdiction.'
She belittled fears that have led to the proposed amendment. 'One does not amend the Constitution on a hunch. One does not amend the Constitution to call a halt to democratic debate within the states. An amendment should be reserved for the most urgent and compelling circumstances. It is a last resort.'
Toward the very end of the hearing Sen. Jeff Sessions, R-Ala., revealed what was for him the principle rationale for the language of the FMA; It's a way to get at activist federal judges who find claims of equal protection in the U.S. Constitution for gays and other minorities.
'It goes to the separation of powers,' he said. If we 'allow the judicial branch to depart from the law ... then we have lost our democracy.' To Sessions, it was all about raw majority rule with no concern for minority protections.
But it seems that most Republican members of Congress do not share his concerns. Focus on the Family had sent e-mails to its supporters urging them to contact their senators and have them ask tough questions, otherwise the record 'will tip in favor of homosexual activists.' But the Republican members of the committee continued to stay away in droves, while the Democrats have appeared in force.
At last week's hearing, chief sponsor of the FMA in the House, Marilyn Musgrave appeared only briefly to read a statement and did not stay for questions. While Allard left partway through the question session. Barney Frank sees this as an indication that most Republican congressmen do not want to deal with this issue.