WASHINGTON (BP)–Failure of Congress to send a constitutional marriage amendment to the states likely will result in courts eventually legalizing “gay marriage” nationwide, a policy paper published by the U.S. Senate Republican Policy Committee asserts.
“The greatest fallacy of the same-sex marriage debate is the well-meaning, but naïve, belief that Congress need do nothing and that the American people will sort the question out on a state level,” the 16-page document, released March 28, says. “… The Constitution is being amended — the only question is whether it will be by judges or by the people. Congress can either send an amendment to the states, or it can allow the courts to impose same-sex marriage nationwide.”
The paper was released as the Senate prepares to vote once more on the Marriage Protection Amendment (S.J. Res. 1), which was blocked from receiving an up-or-down vote in 2004. A vote this year tentatively is scheduled for June. The Republican Policy Committee, chaired by Sen. Jon Kyl, R.-Ariz., publishes policy papers to assist senators in preparing for debates and votes.
The paper notes that while Massachusetts remains the only state with legalized “gay marriage,” other states could follow in coming months. Nine states, the paper says, currently are involved in lawsuits “challenging their traditional marriage laws.” (All but one of the suits seeks the legalization of “gay marriage.” The exception is Nebraska, where activists seek only to overturn the state’s marriage amendment.)
State supreme courts in three states — New Jersey, Washington and New York — could legalize “gay marriage” before the end of the year, the paper says. Evan Wolfson, a homosexual activist who heads the organization Freedom to Marry, is quoted in the paper as saying his movement’s goal is to have 10 states legalize “gay marriage” in the next several years.
Once the U.S. has a patchwork of marriage laws, the paper says, “cultural and legal confusion will develop over a period of years as the nation struggles unsuccessfully to deal with a … state-by-state approach.” Legal questions over wills, divorces and child custody will ensue as same-sex couples “married” in one state move to another state where their licenses are not recognized.
There already is such a case in Washington state, where a lesbian couple “married” in Canada has filed jointly for bankruptcy.
“[F]ederal courts will be forced to address fundamental questions of due process and equal protection that will emerge,” the paper says. “And, as a result of certain liberal-leaning precedents, the final step could be a U.S. Supreme Court ruling that marriage laws be rewritten to require same-sex marriage in all states.”
Although a handful of activists have filed suit against the federal Defense of Marriage Act, the major homosexual groups for now are content in focusing on state lawsuits, the paper says. DOMA prevents the federal government from recognizing “gay marriage” and gives states the option of doing the same.
“[T]he near-term tactical goal of these activists is not national cohesion, but national fragmentation of marriage definitions,” the paper says.
Constitutional amendments require the support of two-thirds of the House and Senate before they are sent to the states for ratification. If three-fourths of state legislatures approve the amendment, it becomes part of the Constitution.
“Constitutional amendments can take years or even decades to gain the necessary support in Congress, giving time for the issue to be debated throughout the nation,” the paper says. “This lengthy debate encourages the kind of grass roots activism that has begun to emerge on both sides of this issue over the past few years, and it gives the people a place to focus that energy.”
While recent polls have shown support for a federal marriage amendment hovering around 50 percent, support likely is “substantially” higher, the paper says. It notes that in the 19 states that have considered marriage amendments, voters have approved them with average support of 71.5 percent. But pre-election polls in those states typically have underestimated support for the proposals, the paper says. It lists 12 states where pre-election polling was conducted. In those states, the actual vote was an average of 10.5 percent higher than the pre-election poll. For example, Arkansas adopted an amendment with 75 percent of the vote in 2004, but the poll had support at only 65 percent. The same was true in the Democrat-leaning states of Michigan (59 percent vote total, 52 percent pre-election poll) and Oregon (57 percent vote total, 50 percent poll).
The paper surmises that respondents in the polls may have been “wary of giving their true beliefs to pollsters in light of some advocates’ disturbing tendency to label opposition to gay marriage as ‘bigoted’ or ‘hateful.'”
“Rather than invite hostile harassment from strangers calling their homes, some respondents appear to have kept their views private, and then expressed them at the ballot box when given the opportunity,” the paper says. “In summary, although polling for a federal constitutional amendment suggests slim majority support at present, there is reason to believe that the actual support may be higher. And more importantly, the only way to know this for sure is to send an amendment to the states for ratification, and let the local political process function.”
The entire paper can be read online at http://rpc.senate.gov/_files/Mar2806MarriageAmendSD.pdf
For more information about the national debate over “gay marriage,” visit http://www.bpnews.net/samesexmarriage