EDITORS’ NOTE: This is the 13th story in a series examining the national debate over same-sex “marriage.” The series appears in Baptist Press each Friday.
Updated April 8, 2004
NASHVILLE, Tenn. (BP)–Could America be just a few years away from nationalized same-sex “marriage”?
The answer depends on who’s asked, and most say it hinges on the constitutionality of the Defense of Marriage Act. Passed in 1996 and signed by President Clinton, the law gives one state the option of not recognizing another state’s same-sex “marriages.”
If the Supreme Court strikes it and similar laws down, then the nation could be forced to embrace homosexual “marriage” — simply because the high court of Massachusetts, or the mayor of San Francisco, took a first step.
Stanley Kurtz, a contributing editor at National Review and a research fellow at Stanford’s Hoover Institution, believes that same-sex “marriage” will be legal nationwide within three to four years –- barring the passage of a constitutional amendment.
San Francisco is issuing marriage licenses to same-sex couples in defiance of state law. Yet come May, Massachusetts could become the first state to recognize state-sanctioned same-sex “marriages.”
“I think that the Supreme Court is going to be looking at a situation … where the whole country is riled up, because we’ve never had a situation where a substantial body of people have marriages that are only valid in one or a few states,” he told Baptist Press.
Kurtz has been right before. Last April, during the middle of the controversy over comments made by Sen. Rick Santorum, Kurtz predicted that the Massachusetts high court would legalize same-sex “marriage,” thus leading to a “domestic culture-war story like no other.” The Santorum controversy was a “molehill” compared to what was coming, he stated.
“Yet neither the Democrats nor the Republicans have any inkling of what is about to hit them,” he wrote then.
With the controversy over same-sex “marriage” brewing on both coasts today, Kurtz believes the issue is unavoidable. If, as expected, Massachusetts begins issuing marriage licenses to same-sex couples this May, lawsuits will follow in federal court to get those licenses recognized nationwide, Kurtz said. The case could end up before the Supreme Court.
“And this is going to mean constant [coverage] in the media,” he said. “It’s going to mean constant legal complications. The only way to solve the problem is to make the definition of marriage uniform throughout the country. The only way to do that either is for the Supreme Court to impose gay marriage on the country or for a Federal Marriage Amendment to pass.”
But others, even some conservatives, disagree with Kurtz over the legal prospects of the Defense of Marriage Act. Doug Kmiec, an author and a constitutional law professor at Pepperdine University, is optimistic that DOMA will be upheld if it is reviewed by the Supreme Court.
The debate over the law’s constitutionality centers on a clause in the U.S. Constitution stating that “full faith and credit” must be given in each state to the “public acts, records, and judicial proceedings” of every other state. But Kmiec points to the next sentence, which states that “Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved.”
“The language of the full faith and credit clause itself seems quite substantial in terms of Congress’ power,” he told BP.
Kmiec, though, favors a constitutional marriage amendment and believes President Bush made the right decision Feb. 24 by backing one. Answering a common objection that an amendment would take the issue from the states, Kmiec asserts that it would do just the opposite.
As it stands now, Kmiec said, justices are taking the debate over marriage away from the people and pre-empting the national discussion. Without an amendment, the definition of marriage becomes the “province of lawyers,” he said.
“This is an issue of nationwide importance, and to have unelected officials at either the state or the federal level be the final decision-makers I think is just simply a mistake,” he said.
An amendment returns the law-making power to the people and to the states, Kmiec said. The fact that it requires support by two-thirds of Congress and three-fourths of the states supports his belief that it would allow for a “vibrant debate.”
“[T]hat is exactly what a constitutional amendment process does,” he said.
Kmiec lives in California, where the state is embroiled over a debate whether the city of San Francisco should be allowed to issue same-sex “marriage” licenses. State law explicitly bans such unions, and the city is involved in a legal battle.
Kmiec said his support for an amendment is tied to his belief in traditional marriage.
“I think we run serious risks as a nation if we leave out on the table the option that alternative family arrangements are a reasonable or perfect substitute for traditional marriage,” he said. “I don’t believe that they are.”
But some in the political realm predict that the nation eventually will embrace same-sex “marriage.” Teresa Heinz Kerry, wife of Democratic presidential frontrunner John Kerry, said Feb. 24 that “the country will evolve” and eventually will recognize same-sex “marriage.”
“I think culturally we’re going through a huge change,” she said.
Last November Sen. Joseph Biden, D.-Del., said legalized same-sex “marriage” was inevitable. “It’s going to be something we have to go through as part of the maturation process of the nation,” he said.
The issue has gained wide acceptance among some media members. In early March The New York Times’ editorial board asserted that bans on same-sex “marriage” will fall much like bans on interracial marriage did in the 1950s and ’60s.
“The idea of marriage between two people of the same sex is still very new, and for some unsettling, but we have been down this road before,” the editorial stated. “This debate follows the same narrative arc as women’s liberation, racial integration, disability rights and every other march of marginalized Americans into the mainstream.
“Same-sex marriage seems destined to have the same trajectory: from being too outlandish to be taken seriously, to being branded offensive and lawless, to eventual acceptance.”
Kurtz said that amending the Constitution is not impossible, although it won’t be easy.
“[T]he country is more liberal than it was in 1996, although that could change in response to these events,” he said. “… People are much more reluctant to amend the federal Constitution — especially on the issue of marriage, which is not ordinarily dealt with in the Constitution.
“You always have to say it’s an uphill battle to pass an amendment to the Constitution.”
For more information about the national debate over same-sex “marriage,” visit: