Tuesday, March 23, 2004

Legal scholars and lawmakers yesterday strongly disagreed over the need for a constitutional amendment to protect marriage, with some arguing that it is the only way to save the institution.

“If this body does not approve a federal constitutional amendment defending marriage, the courts will take this issue away from the American people and they will abolish traditional marriage. It is really that simple,” Katherine S. Spaht, a law professor from Louisiana State University, said yesterday before the Senate Judiciary subcommittee on the Constitution, civil rights and property rights.

Critics say amending the constitution to ban homosexual “marriage” is discriminatory and unnecessary, and that the matter should be left to the states.

Rep. Barney Frank, Massachusetts Democrat, testified before the panel that same-sex “marriage” would have no impact on traditional marriage and that homosexuals like himself simply want to be able to commit to a relationship the same way heterosexual couples do.

“How does that hurt you?” he asked the senators. “All we’re saying is: Please, can’t we in our lives do that?”

In his opening comments, Sen. John Cornyn, Texas Republican and committee chairman, called it a “myth” to say that one marriage doesn’t affect another.

“That statement doesn’t reflect reality,” Mr. Cornyn said. “If the national culture teaches that marriage is just about adult love and not about the raising of children, then we should be troubled but not surprised by the results.”

The committee probably will vote soon on the proposed amendment to ban homosexual “marriage,” a spokesman for Mr. Cornyn said. The sponsors — Sen. Wayne Allard, Colorado Republican, and Rep. Marilyn Musgrave, Colorado Republican — revised the second half of their proposal on Monday and said it now clearly allows state legislatures to give same-sex couples benefits under civil unions.

But legal analysts disagreed about the effects of the proposal. Sen. Dianne Feinstein, California Democrat, worried that the language still could hamper same-sex couples from receiving benefits under civil unions.

“It’s not clearly worded,” Mrs. Feinstein said of the revised amendment. “It means different things to different people.”

Mrs. Feinstein predicted that the Senate won’t be able to muster the 67 votes needed to pass the proposal or alternative amendments.

President Bush has called for a constitutional amendment to define marriage as a union between a man and a woman.

Supporters say the amendment is essential after Massachusetts’ highest court ordered the state legislature to allow homosexuals to “marry” there and because of the thousands of same-sex couples “married” by local officials who flouted state law in California and elsewhere.

Teresa Stanton Collett, a professor at the St. Thomas University School of Law in Minnesota, told the panel that nearly half the states are fighting efforts to redefine marriage and that “this number will only increase without a constitutional amendment.”

She cited “the very real possibility” that the U.S. Supreme Court will require states to recognize same-sex “marriage,” based on the court’s comments in recent cases.

Opponents of the proposed amendment say states will be able to deal with the issue.

“The concerns … are not adequate to justify this radical change,” said Cass R. Sunstein, law professor at the University of Chicago Law School. “No federal judge has said — not once — that the existing Constitution requires states to recognize same-sex ‘marriage.’ No member of the Supreme Court has indicated that the equal-protection clause imposes such a requirement.”

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