But the Senate vote on the Federal Marriage Amendment will be ugly to watch

TxTriangle.Com
By Ann Rostow
July 9, 2004

Nearly a year ago, the Republican Policy Committee of the United States Senate issued a 12-page white paper titled “The Threat to Marriage from the Courts.” Dated July 29, 2003, and presented by Committee Chairman Jon Kyl of Arizona, the paper is an effective argument in favor of a constitutional amendment to ban same-sex marriage. Amending the United States Constitution, wrote Kyl’s group, is the only mechanism with any hope of turning back the tide of same-sex marriage. No federal or state statute, the group concluded, is likely to pass constitutional muster. And the existing Defense of Marriage Act is doomed to be struck down by the courts as well.

This week, after months of desperate moves by the anti-marriage far right, the Federal Marriage Amendment is finally headed for a Senate vote. Will it win the two-thirds majority it needs to pass? No. Will it even win the 40 votes it needs to reach the Senate floor? We’ll see. One thing we’re sure it will do is put lawmakers on the spot in an election year, and force the Democratic ticket in particular to take a stand on a dicey question. But although it may be pure politics that led Majority Leader Bill Frist to schedule an FMA showdown, the visibility it gives to the drastic notion of amending the Constitution is unnerving.

Kyl and his GOP Senate friends were quite correct. It is only a matter of time before courts throughout the country agree that the denial of marriage rights to same-sex couples is an unconstitutional lapse of equal protection, as well as an unjustified denial of the fundamental right to marry. The federal Defense of Marriage Act most certainly treats gay married couples differently from heterosexual pairs, even though these two types of couples are seemingly identical as a matter of law. And as for the idea that states can fall back on their own public policy in order to deny recognition to same-sex marriages from other states, most lawyers believe that these laws, (as well as the federal DOMA that supports them), run afoul of the Constitution’s Full Faith and Credit Clause. That Clause requires states to respect the public acts, records and judgments of all sister states.

Basically the anti-marriage team is about to lose the game, and seeks therefore to change the underlying rules as a last resort. Two out in the ninth? Let’s play 15 innings. Down by a touchdown? Let’s not count that last drive. Tee shot out of bounds? Take a mulligan. There’s no need to exhaust the sports analogies. The good news is that, yes, we are on the verge of winning the right to marry. Marriage pioneer, lawyer Evan Wolfson is fond of Gandhi’s quote: “First they ignore you, then they laugh at you, then they fight you, and then you win.” The battle for marriage has followed that pattern, and has now arrived on the dividing line between the fight and the victory. But the bad news is that changing the rules of the game at the penultimate moment would indeed keep the prize of marriage just beyond our grasp, perhaps for generations.

It cannot be allowed to happen.

Prohibition is an anomaly in the history of constitutional amendments. Its repeal was widely popular and a matter of some public urgency given the increasing influence of organized crime. But if this nation passed an amendment prohibiting same-sex marriage, when would it be repealed? You never say never, but it would probably only be repealed as a symbolic matter, decades after the civil rights of same-sex couples were established in other social settings. During those decades, gay and lesbian couples would endure second-class status, even as progress would continue towards equality.

Without this assault on our founding document, however, the legalization of same-sex marriage and the public acceptance of gay couples that will follow is pretty much assured. Our experience in Vermont, Canada, and Massachusetts suggests that legalizing marriage triggers an initial backlash, but subsequently improves attitudes towards gay and lesbian unions. And as Kyl and company acknowledge, once same-sex couples begin marrying somewhere, in this case Massachusetts, it will become increasingly difficult, if not impossible to put the genie back in the bottle.

“The practical legal and human problems will proliferate,” predict the authors of the report. “Problems of children in need of child support payments, of custody disputes for divorced homosexual couples, of homosexual former spouses being denied benefits rightfully theirs under Massachusetts law, and so forth. All the efforts to craft uniform solutions to matters of family law over the past half-century will could prove useless in the context of homosexual couples who have left Massachusetts.”

And how will these legal tensions be resolved? “As the States struggle to react,” the paper goes on, “the risk of Supreme Court intervention to create a uniform standard… will only increase.”

We have fifty states, yes. But we are a single country, where a quickie divorce in Reno was recognized throughout the nation at a time when other states had lengthy divorce procedures of their own. In 1967, the various state policies regarding interracial marriage were swept into one national standard by the Supreme Court. And although for a time we might have an array of different rules on same-sex marriage, eventually American governing principles, practicality, and common sense will combine to equalize all U.S. same-sex marriage laws. Absent a constitutional amendment to the contrary, of course.

This is, therefore, an all or nothing fight. The Human Rights Campaign has called the Federal Marriage Amendment “a line in the sand.” Anyone who votes for the Amendment, said HRC Executive Director Cheryl Jacques in a recent Metro Weekly interview, “is no friend of the gay community and will not be supported by the gay community. There may be other issues where we can say ‘You win some, you lose some,’” she went on. “But not this one. There is no equivocating on writing discrimination into our most precious document.”

Jacques has called a “yes” vote on the FMA, the “worst vote in our lifetime,” when it comes to taking stands on gay issues, and she is surely right. Above and beyond the practical damage that the FMA would do to the gay rights movement, the very idea of adding anti-gay principles to the core political ideals that define our nation is nauseating. After Lawrence v. Texas was announced in June of last year, the gay community in San Francisco lowered the Rainbow Flag at the corner of Castro and Market Streets, and raised the Stars and Stripes in its place. But if Lawrence made some American gays and lesbians feel like full citizens for the first time, the Federal Marriage Amendment would make every one of us feel like strangers in our own country. Even those of us who had never really thought about politics or gay rights or activism, would find themselves lost.

The positive news, of course, is that the FMA has not yet generated a great deal of support. Next week’s vote is indeed a political sideshow, but when the stakes are this high, complacency is not an option. Walk across the room without deviating from an imaginary path, three-feet wide, and it’s easy. Try taking that walk on a real three-foot board, across a deep chasm, and it’s terrifying.

“Our forefathers did set high hurdles to change the United States Constitution and God Bless them,” said HRC’s Jacques. “Having said that, I think it’s a complete mistake to underestimate that this could happen…. If we did nothing, it could pass the Senate. If we did nothing, it could pass the House [and] I believe that if it ever got out of Congress, the potential for it to spread like wildfire would be there. So many states are pushing ballot initiatives, the appetite is there to support these kinds of measures. I’m really grateful that we took it seriously. Our goal is nipping it in the bud.”