If ever there was a snapshot of the arguments that will fire
the same-sex marriage political battles heating up this year,
it was at last week’s Senate hearing on the Defense of Marriage
Act (DOMA). Seven years ago the bill, defining marriage
for purposes of federal law as “only a legal union between one
man and one woman as husband and wife” was passed with overwhelming
bipartisan support of Congress (85-14 in the Senate, 342-76 in
the House). The laws and traditions of all 50 states were in support.
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Senator
John Cornyn, R-Texas |
“Recent and pending cases,” said Senator John Cornyn, (R-Texas),
“both before the U.S. Supreme Court and in federal and state courts
across the country—have raised serious questions regarding the
future of the traditional definition of marriage, as embodied
in DOMA. Judicial activism, not democratic and legislative
will, has imperiled the future of the widely-supported bill.”
Sen. Cornyn asked, “Will the law of the land be as people intend,
or overturned by activist courts?”
A line up of witnesses discussed the legal and social trends
that could overturn DOMA, but most intriguing was the posturing
and disdain directed at the hearing itself from some of the Senate’s
most noted liberal icons.
Comments from Sens. Edward M. Kennedy (D-Mass), Russell D.
Feingold (D-Wisconsin) and Patrick Leahy (D-Vermont) claim against
growing evidence that nobody really thinks traditional marriage
is under attack and sniffed that a Senate hearing should be held
on whether DOMA can survive a court challenge.
These lions of the left sounded like they had shared a speechwriter.
The
Argument that the Marriage Debate is Trivial or Untimely
“Why should be spend our limited time on this issue?” said
Sen. Leahy.
Sen. Kennedy said, “I wonder what in the world we are doing
over here at this hearing that is of essential worth?”
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Senator
Russ Feingold, D-Wisconsin |
“We just returned from a month of recess and most of us spent
a lot of time with our constituents,” said Sen. Feingold. “I can tell you that my constituents were talking
to me about the economy, the loss of jobs to foreign competition,
skyrocketing gas prices, the war in Iraq and the fact that our
troops are still suffering considerable losses on almost a daily
basis…The American people should be united to meet these and other
challenges, and they are best served if Congress focuses its attention
on these pressing matters.”
So, there is argument number one against those who see traditional
marriage seriously threatened and are rising up to do something
about it. Expect to see
it when the political discussion turns to protecting marriage.
It is a collective, but perhaps feigned yawn, the claim that
advocates for the natural family are looking for solutions where
there is no problem. The idea is to make them feel stupid, marginalized,
take the steam out of their engine, refuse to acknowledge the
river that is becoming a flood to undo marriage. Imply that traditional
marriage advocates are Chicken Littles running around claiming
the sky is falling.
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Senatory
Patrick Leahy, D-Vermont |
In calling the concern about DOMA and the traditional concept
of marriage a deviation from what is really important or pressing,
these senators already tipped their hand.
Traditional marriage is expendable.
War, the economy, healthcare concern us and rightfully deserve
our attention, but many of these issues are fleeting, changing,
and a whole new crop of crises will be upon us next year. Yet, opening the door to the so-called same-sex “marriage” subverts
and assaults the very foundation of society and is a radical and
revolutionary social experiment, untried in history, from which
we could never retreat.
And this is not important?
Despite the bluster from the left, Sen. Cornyn asserted,
“This is a matter of tremendous concern to the American people.”
Argument
for Religious Rights
“I do not believe,” said Sen. Feingold, “that Congress should
spend time on an issue that should be left to the states and religious
institutions. The Free Exercise and the Establishment Clauses
of our Constitution guarantee that religious institutions have
the freedom to determine without government interference which
unions they will recognize.”
In that one statement lie two assumptions that will continually
surface as the marriage debate escalates. The first is a subtle shift with Richter-scale ramifications.
Because marriage is society’s bulwark, every legal and
social institution has been in place to support and maintain it.
We have a vested interest in marriage because it is the stability
of our culture.
Now, Sen. Feingold suggests instead that the government won’t
interfere with a religious institution’s right to recognize
what unions they choose.
This is a radical idea--moving from using government’s power
and mechanisms to support marriage to suggesting that the government
will merely stand back and not mettle.
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Senator
Edward Kennedy, D-Massachusetts |
What’s more, Sen. Kennedy added a new twist on the argument.
He suggested that laws that define marriage, were, in fact,
an attack upon religious freedom, undermining the protection of
those religious groups who wanted to solemnize same-sex relationships.
This stretch of an argument, like a two-edged sword, is
one that will strike marriage proponents both coming and going.
On the one hand, their detractors will argue that laws like
DOMA are religiously motivated.
Who else, besides the religious, they imply, would be so
sticky about the rules? Why does the definition of marriage have
to involve a man and a woman unless it is the work of religious
oppressors hog-tying freedom-lovers again?
Ah, but like Fiddler on the Roof’s Tevye, there is another hand. They will also argue that laws defining marriage
are an attack upon religion, constricting churches from
construing marriage to be anything they want it to be.
Argument
for States’ Rights
The 600-pound gorilla at the Senate hearing was a discussion
of an amendment to the Constitution defining marriage as the union
of a man and a woman. The
hearing was not called about a Constitutional amendment, nor has
one been introduced in the Senate, still everybody could see the
gorilla.
The Traditional Values Coalition released a statement at the
hearing “that 2003 will be remembered as the year America stood
its ground and made a last stand in defense of traditional one
man/one woman marriage.”
So Sen. Feingold was referring to a Constitutional marriage
amendment when he tried to sound like a conservative, appealing
to the ideal of federalism and states rights. It could be an issue
that may split conservatives as the issue of a Constitutional
marriage amendment grows in public awareness and concern.
Though the Defense of Marriage Act is particularly for the
purpose of federal law, since marriage and family matters involve
citizens so intimately, most laws concerning the family have been
left to state governments to determine. Anything that removes
these decisions further from the people, argues the federalist,
should be avoided.
A sound principle, but sheer hypocrisy applied here, spoken
by the same people who cheered the recent Lawrence case that removed
sodomy from states’ jurisdictions.
The duplicity is as obvious as the gorilla in the room. In this case, a Constitutional marriage amendment
is the alternative not to the states determining their
own laws about marriage. Instead,
it is the alternative to the courts deciding for us what
marriage is—upstaging the people who have repeatedly spoken on
the issue.
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Michael
Farris, Founding President of Patrick Henry College |
“The fact is,” said attorney Michael P. Farris, president of
Patrick Henry College, “we cannot leave the issue to the courts. Tyranny is when non-elected officials make
the law. In the Founders
era, it was understood that if people do not make the law, tyrants
will. We are on the verge of a judicial revolution
that has got to stop before they destroy the culture itself.”
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Gregory
Coleman, Former Solicitor General, State of Texas, Austin,
Texas |
Gregory S. Coleman, former solicitor general of Texas, “A federal
constitutional amendment is perhaps the most democratic of all
processes—because it requires ratification by three-fourths of
the states.”
As experienced and polished as the senators sitting to the
left of Mr. Cornyn were at the hearing, their arguments were flimsy,
resorting first to the pretense that America would face no crisis,
no battlefield over marriage and that DOMA was not in jeopardy.
If DOMA is challenged, they will not say, “you told us
so.”
Instead, they will say, as they did at the hearing, that same-sex
“marriages” are a necessary human right, that the Constitution
is beautiful and sacred and shouldn’t be tampered with, that they
love freedom and cannot support anything that restricts it.
What they won’t acknowledge or even entertain is the catastrophic
damage awaiting our society if we define marriage away so that
in attempting to mean everything, it means nothing, and telling
America’s young people that marriage between a man and a woman
is no longer the norm or ideal.
Social
Experimentation
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Syndicated
columnist Maggie Gallagher speaks in the midst of the other
witnesses |
Maggie Gallagher, President of the Institute for Marriage and
Public Policy, testified, “Marriage is a key social institution,
but it is also a fragile institution:
with half or more of our children experiencing the suffering,
poverty and deprivation of fatherlessness and fragmented families…The
marriage crisis is intimately involved with how committed we as
a society are to two key ideas: that children need mothers and fathers, and
that marriage is the main way that we create stable, loving mother-father
families for children.”
Gallagher, a syndicated columnist, said, “We now have enormous
data on this question. There
are not dozens, or hundreds, there are thousands of studies addressing
the question of family structure…And the overwhelming consensus
of family scholars across ideological and partisan lines is that
family structure DOES matter…
“All things being equal, children do better when their mothers
and fathers get and stay married.
Both adults and children are better off living in communities
where more children are raised by their own two married parents. Both adults and children live longer, have higher rates of physical
health and lower rates of mental illness, experience poverty,
crime and domestic abuse less often, and have warmer relationships,
on average, when parents get and stay married.”
What’s more stable families are far less expensive for taxpayers
who do not have to bear public costs created by higher rates of
crime, drug abuse, education failure, domestic violence and welfare
expenditure.
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Maggie
Gallagher challenged some of the Senators' assumptions |
“Marriage,” said Gallagher, “is in fact a cross-cultural institution.
It is not a mere plaything of passing ideologies but in
fact the word for the way that, in virtually every known human
culture, society conspires to create ties between mothers, fathers,
and the children their sexual unions produce.”
She continued, “In endorsing same-sex marriage, law and government
will thus be making a powerful statement; our government no longer
believes children need mothers and fathers;
two fathers or two mothers are not only just as good as
a mother and a father; they are just the same.”
It is a fallacy, Gallagher said, to believe that if we allow
unisex couples to marry there will be two kinds of marriage that
run parallel to each other. “In
reality, there will be one institution called marriage, and its
meaning will be dramatically different.”
At-risk
Youth
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The
Honorable Reverend Dr. Ray Hammond of Boston |
The Rev. Dr. Ray Hammond, who heads several organizations in
Boston working with at-risk, inner-city black and Latino youth
lamented America’s modern epidemic of family breakdown and said
that from his personal experience he knows that the African-American
community in particular has paid a heavy price for fatherlessness.
He said, “After all, in vitually every society on the face
of the earth, marriage is what makes fatherhood more than a biological
event—by connecting men to the children they bring into the world.
“No group,” he said, “experiences family disintegration more
profoundly than the young urban men and women I see, work and
worship with. Theirs is
a topsy-turvey world where there is a growing number of households,
struggling to make ends meet with parents, often single mothers,
striving to hold themselves and their families together while
they try to raise boys who will not become fodder on the killing
fields they call urban streets and daughters who will not grow
old before their time.”
The Rev. Dr. Hammond said, “Tragically, as bad as our current
situation may be, it could soon become dramatically worse because the courts in America are poised to
erase the legal road map to marriage and the family from American
law.”
What
Are the Chances?
So what are the chances that the federal Defense of Marriage
Act, and with it government support for traditional marriage at
every level, will be undermined and thrown out by the courts unless
a marriage amendment is put in place? Of the three attorneys who
testified at the Senate hearing, two thought DOMA’s demise was
not inevitable, but highly likely.
Farris said that in the course of litigation you have to help
your client assess the risks they are about to assume. Here’s the scenario that would challenge the
Defense of Marriage Act.
He said, “If the Supreme Judicial Court of Massachusetts, the
Supreme Court of New Jersey, or the supreme court of some sister
state, rules that same-sex “marriages” are required under their
respective state constitutions, then the stage is set. [Such a
decision is pending in Massachusetts.]
“Couples who are married in the wake of one of these rulings
will then seek to move or return to another state and have that
marriage recognized. If
the second state wants to recognize that same-sex “marriage,”
DOMA does not prevent such recognition. However, if the second state refuses to recognize
the out-of-state same-sex “marriage,” then the argument will be
raised that the Full Faith and Credit Clause requires its recognition. The state will then employ DOMA as part of
its defense against such a constitutional challenge.”
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Senator
Charles Schumer, D-New York |
Will DOMA hold up under this challenge? It is conceivable that it could, but if the
strength of a legal trend could be compared to a river, Farris
said, six months ago the appropriate metaphor would have been
a small stream, now ‘it is a river raging with floodwaters, and
not just any flood, but the hundred-year flood against which all
future events will be judged.”
The challenges to the constitutionality of DOMA will focus
on two tracks. First same-sex
“marriage” proponents will continue to push for the right to marry
and second, couples with civil unions will continue to push to
require states to give formal recognition to the status achieved
in other jurisdictions.
What may work together for the homosexual “marriage” advocates
are two Supreme Court decisions Romer v. Evans, settled
in 1996, (when the legal trend was just a small stream) and Lawrence
v. Texas, settled in 2003, (which created the floodwater).
In Romer, the voters of Colorado had enacted an initiative
that limited the ability of citizens to obtain legal protections
in civil rights laws on the basis of sexual orientation. The Supreme Court struck down this law saying it violated the 14th
Amendment’s Equal Protection clause. Coleman said, “It would be
a relatively straightforward application of Romer for a
Court to similarly find that DOMA and its state-law parallels
violate equal protection.”
Open-ended Lawrence Case
Still it is the Supreme Court’s ruling in the Lawrence
case, recently striking down the Texas sodomy law, which has sounded
the alarums, not in the ruling alone, but in the court’s broad
reasoning to explain itself.
Here the Justices noted that “the fact that the governing
majority in a State has traditionally viewed a particular practice
as immoral is not a sufficient reason for upholding a law prohibiting
the practice.”
Translation: the citizens’
sense of morality based on the long tradition and foundation philosophies
of their society are not enough to prohibit a practice they find
immoral. Forget the moral
judgment of the majority say the Justices.
It no longer applies in our decision-making.
Coleman pointed out that “The right the petitioners sought
to have recognized in Lawrence can be viewed from two perspectives: first, as a privacy interest that protects
sexual conduct between consenting adults in a home; or, second
as a liberty interest that requires a broader societal
recognition of the relationship itself (and perhaps legal recognition,
too.)
“The Court could have decided the case on the narrower privacy
grounds, but it expressly declined to do so,” said Coleman. It went for a broader, more open-ended definition
of liberty and freedom. The
Court ruled, “When sexuality finds overt expression in intimate
conduct with another person, the conduct can be but one element
in a personal bond that is more enduring.
The liberty protected by the Constitution allows homosexual
persons the right to make this choice.”
What offended the Justices about the Texas sodomy statute was
not just its prohibition of certain sexual conduct, but its “control”
of a “personal relationship.”
Nearly in the same breath, the Court also reminded that
“our laws and tradition afford constitutional protection to personal
decisions relating to marriage, procreation, contraception,
family relationships, child bearing and education.”
Given this sentiment, Coleman said, “It is my professional
opinion that, in the absence of some intervening event, the Supreme
Court’s evolving standards of liberty and privacy will result
in constitutional protection for same-sex marriages within the
next five to fifteen years.”
That is unless something is done about it.
