Saying 'I do' to marriage

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Some have cold feet. Others are indecisive. Many would rather avoid the issue.

Are we willing to amend the U.S. Constitution to preserve the institution of marriage? The question will come before the Senate this week when members debate and vote on whether to consider a constitutional amendment that protects marriage between a man and a woman.

It's not clear what several key senators will do. They say marriage should be between one man and one woman. But they're reluctant to amend the Constitution. They probably think the 1996 Defense of Marriage Act, or DOMA, is enough to protect marriage.

That argument made sense eight years ago. Judges in Hawaii declared the state's marriage statute was "sex discrimination" and violated the Hawaii constitution. That's when Congress overwhelmingly passed DOMA, signed by President Clinton, that defines marriage for purposes of federal law as the union of one man and one woman, and clarifies that the "full faith and credit" clause of the U.S. Constitution does not require that states be forced to recognize as a marriage any union other than that of one man and one woman.

But two U.S. Supreme Court cases changed all that. In Romer vs. Evans, the court declared a state constitutional amendment unconstitutional because it was "born of animosity" toward homosexuals and violated equal protection under the U.S. Constitution. And in Lawrence vs. Texas, the court declared that all individuals have a due process right to "seek autonomy" in their private relationships, including "personal decisions relating to marriage."

Last November, the Massachusetts Supreme Court ran with these ideas when it ruled traditional marriage "is rooted in persistent prejudices" and that homosexual couples are legally entitled to marriage under the state constitution. Massachusetts now has issued more than 2,500 "marriage" licenses to same-sex couples from 27 states and the District of Columbia, creating legal standing to challenge DOMA nationwide.

The effect of all these decisions, and the litigation strategy behind them, is now clear: establish same-sex "marriage" as a civil right the federal government will then have a constitutional obligation to secure nationwide.

Is it likely DOMA will withstand this judicial juggernaut?

Under normal circumstances, the answer would be yes. Congress has the power under Article IV to prescribe the effect of the "full faith and credit" clause. But DOMA won't survive activist judges bent on using dubious interpretations of equal protection or due process to advance their policy objectives.

"You'd have to be tone deaf," says Harvard law professor Lawrence Tribe, "not to get the message from Lawrence that anything that invites people to give same-sex couples less than full respect is constitutionally suspect."