Save marriage in the Constitution

Sen. Rick Santorum, Pennsylvania Republican, said: “I will support whatever it takes to preserve the institution of marriage. Court decisions are expected to be handed down by state courts which will establish a right to same-sex marriage. That will trump the federal DOMA (Defense of Marriage Act). The only way to avoid that is a Constitutional amendment.”

DOMA was passed by Congress seven years ago by huge margins (85-14 in the Senate, 342-76 in the House). It defines marriage as “a legal union between one man and one woman as husband and wife.” And it provides that states need not recognize a same-sex marriage performed and valid in another state. Furthermore, 37 state DOMAs are now law.

What sparked passage of DOMAs were court cases in Hawaii and Alaska that declared state marriage laws unconstitutional because they did not allow gay marriages. While voter referenda in both states overturned the court decisions, Vermont’s Supreme Court literally ordered the state legislature to provide the benefits of marriage to same-sex couples, and the legislature enacted America’s first civil-union statute. It is same-sex marriage in all but name.

California recently passed a similar law that Gov. Gray Davis will sign. The Massachusetts Supreme Court is considering a similar case which could actually allow same-sex marriages.

Thousands of same-sex couples have had their relationship recognized in Vermont, 80 percent of whom came from other states. Some of them are filing suits to have their own state recognize the “marriage.” The Constitution has a “Full Faith and Credit” provision that requires states to recognize the valid laws of other states.

While DOMAs are designed to prevent that, both liberal and conservative experts think they will be overturned by the Supreme Court. In its recent case overturning the Texas sodomy law, Lawrence vs. Texas, the court went far beyond declaring homosexual acts legal. It said, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct.”

It added, America’s “laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child-rearing and education.” It demurred that the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

In his dissent, Justice Antonin Scalia quoted that last sentence and tartly wrote, “Do not believe it.”

Tony Perkins, the new president of the Family Research Council, commented: “The question at hand is how best to prohibit the courts from imposing so-called ‘gay marriages’ on our nation. Recent polls show that a growing majority of Americans are supportive of a Federal Marriage Amendment, and for good reason. Far too often, our courts are ignoring the will of the people and that of state legislatures in order to impose a liberal political agenda on America. And now, with the growing likelihood that a U.S. court will declare a right to same-sex marriage, the Federal Marriage Amendment has become a necessity.”

Predictably, Sen. Ted Kennedy disagreed at a hearing last week, noting there have been only 17 amendments to the U.S. Constitution in two centuries, which generally were to “expand and protect people’s rights, not to take away or restrict their rights.” Churches have the freedom to decide whom they are to marry. “Far from upholding religious freedom, the proposed amendment would undermine it by telling churches they can’t consecrate same-sex marriages, even though some churches are now doing so.” The Episcopal Church recently moved to sanction same-sex unions.

The proposed amendment is simple: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal ingredients thereof be conferred upon unmarried couples or groups.”

Most experts believe the amendment would invalidate Vermont and California laws that are virtually equivalent of marriage. However, passage of a constitutional amendment is supremely difficult. It requires a two-thirds vote in both the House and Senate and must be ratified by three-fourths of the states.

While a few Democratic members of Congress have joined mostly Republican sponsors in the House, thus far in the Senate only Republicans have signed on.

However, if the Massachusetts Supreme Court legalizes same-sex marriages, Democrats would oppose the Marriage Amendment only at the peril of losing their bid for re-election.

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