- The Washington Times - Tuesday, November 18, 2003

The decision yesterday by the Massachusetts Supreme Court, by the margin of 4 to 3, that homosexuals have the right to “marry” under that state’s constitution could force all states to decide whether to recognize gay “marriage.” The quotation marks around “marriage” are important. To those of us who believe that marriage is properly reserved for unions of one man and one woman it has become clear that, given current judicial trends, homosexual “marriage” is likely to become the law of the land without an amendment to the U.S. Constitution. President Bush, learning of the ruling as he landed yesterday in London, promised to work with legislative leaders to protect the sanctity of marriage as we have known it for centuries. This is good news.

According to William Saunders, a lawyer who is the vice-chair for religious liberty with the Federalist Society, without such an amendment the process would work as follows: A homosexual couple would get “married” in Massachusetts or Vermont, where a similar 1999 state Supreme Court ruling mandating gay civil unions led to the legislature’s approval of a bill the following year. The couple could then go to any one of the 13 states and the District of Columbia that have no defense of marriage act, which defines marriage as the union of one man and one woman. Once in those states, any homosexual couple would be on relatively strong legal ground to demand recognition of their marriage, or civil union. Under the “full faith and credit” clause of the Constitution, a state is required to recognize a compact made in another state if it doesn’t expressly conflict with its own laws.

What if a homosexual couple from Massachusetts or Vermont tried to force one of the 37 states which have defense of marriage laws to recognize their marriage anyway? These states would also face serious legal hurdles to sustain their laws. Homosexuals would demand that these states recognize their unions. If a defense of marriage state balked, a lawsuit could make it to the U.S. Supreme Court. Such a suit might well prevail. In June, the Supreme Court voted to overturn one of its rulings, issued in 1986 (and along with it, several centuries of American legal precedent) in declaring Texas’ sodomy law unconstitutional. Pat Trueman, an attorney and former Justice Department official who serves as senior adviser at the Family Research Council, believes it is likely that homosexual rights groups will test these laws in the federal courts in the coming years, and that judging from the high court’s ruling, the Supreme Court could very well declare homosexual marriage a constitutional right.

Years from now, yesterday’s ruling in Massachusetts may be remembered as a turning point — a day in which it became clear to American traditionalists that the only way to protect the sanctity of marriage is to amend the Constitution.

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