A federal law that defines traditional marriage is vulnerable to overturning by courts, two legal analysts yesterday told a Senate hearing.
Two U.S. Supreme Court rulings have found constitutional protections for same-sex relationships, Gregory S. Coleman, former solicitor general of Texas, told the Senate Judiciary subcommittee on the Constitution, civil rights and property rights.
This does not bode well for the 1996 Defense of Marriage Act (DOMA), Mr. Coleman said, referring to the law that defines marriage as “the legal union between one man and one woman as husband and wife, and that a spouse is a husband or wife of the opposite sex.”
“It is likely, though not inevitable” that DOMA and other prohibitions on same-sex “marriage” will be found unconstitutional in the near future, he said.
DOMA passed Congress with large majorities in 1996.
Michael P. Farris, president of Patrick Henry College in Purcellville, Va., and a constitutional law instructor, said, “I am dubious that DOMA will survive even a few years. I am absolutely certain that it will not last a generation.”
Dale Carpenter, a professor at the University of Minnesota Law School, disagreed that DOMA was in imminent danger.
“It is unlikely that courts will impose immediate, nationwide gay marriage contrary to this powerfully expressed legislative and popular will,” Mr. Carpenter said.
A greater peril, he said, is inherent in amending the Constitution, as a House bill proposes, to define marriage as between a man and a woman. Defining marriage in the Constitution is “unnecessary, radical, undemocratic and [an] overly broad departure from the nation’s traditions and history,” said Mr. Carpenter.
Throughout the nearly three-hour hearing, Sen. John Cornyn, Texas Republican and a former state attorney general, stressed that the hearing was about the future of DOMA, not a constitutional amendment.
“The question before us now is whether the popular and bipartisan [DOMA] legislation will remain the law of the land, as the people intended, or be overturned by activist courts,” Mr. Cornyn said. Congress should defend DOMA if it is endangered, he said.
Sens. Russell D. Feingold of Wisconsin, Patrick J. Leahy of Vermont and Edward M. Kennedy of Massachusetts, all Democrats, questioned why a hearing was held on DOMA.
No court has questioned DOMA and no one has suggested seriously that the law is in danger, Mr. Leahy said.
“I do not believe that Congress should spend time on an issue that should be left to the states and religious institutions,” Mr. Feingold said.
“What are we doing here?” asked Mr. Kennedy, adding that Congress had more pressing issues to discuss than a marriage amendment “that responds to a nonexistent problem.”
In response, Mr. Cornyn held up a recent Newsweek magazine with a cover story on homosexual “marriage.” One would have to be blind not to see that marriage has become a public issue, he said.
Also testifying was the Rev. Ray Hammond, an adviser to the Alliance for Marriage, a coalition supporting a federal marriage amendment; syndicated columnist and traditional-marriage advocate Maggie Gallagher; and San Francisco health care worker Keith Bradkowski, who testified about his difficulties obtaining death benefits after his partner, Jeff Collman, was killed on September 11, 2001.