- The Washington Times - Monday, August 2, 2004

The Federal Marriage Amendment is dead in the water for now, and so conservatives are pushing what they consider to be the next best way to prevent nationwide recognition of same-sex “marriages”: a court-stripping amendment. The idea is to prevent courts from deciding constitutional challenges to the 1996 Defense of Marriage Act, which clarified that no state can be forced to recognize same-sex “marriages” performed elsewhere. Unfortunately, the court-stripping amendment — even if it passed into law — will only delay the inevitable.

Passing the amendment would indeed prevent federal judges from short-circuiting the system and installing same-sex “marriage” by judicial fiat. But it wouldn’t prevent state courts from legalizing same-sex “marriage” within their own jurisdictions. And if they do, there’s nothing the appellate courts or the Supreme Court could do, because of two recent decisions.

In the landmark case of Romer v. Evans, the Supreme Court struck down a Colorado constitutional amendment that forbade nondiscrimination laws on the basis of sexual orientation. In the similar case of Lawrence v. Texas, the court struck down a Texas law banning homosexual sodomy. In both decisions, the court argued that there is a fundamental right of privacy when it comes to sexual relations, and the law can therefore draw no adverse inference from the fact of one’s sexual orientation alone. And if there is a fundamental right to engage in homosexual activity, then all who regard it as a moral wrong, including many elements of both the Christian and Jewish organized faiths, would be bigoted. And if it is impossible to distinguish between different forms of human sexuality, then the laws restricting marriage to the union of a man and woman must be inherently discriminatory.

The court’s reasoning can be used to justify all sorts of abominations. But more immediate and pressing are the dangers Romer and Lawrence pose to traditional marriage.

If a state or federal court thought to draw upon Romer and Lawrence to legalize same-sex “marriage,” there is nothing the Supreme Court could do to stop them without renouncing its own holdings. Without a federal constitutional amendment, then, the path has been blazed for challenge after challenge, in state after state, to the laws governing traditional marriage. At some point, advocates of traditional marriage will need to take a stand and endorse the union of a man and a woman as the law of the land.

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