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Lawsuit targets marriage amends. passed by voters Nov. 2

NASHVILLE, Tenn. (BP)–Voters in 11 states on Election Day passed constitutional amendments banning same-sex “marriage,” but all of them could be overturned if a lawsuit filed in federal court Nov. 3 succeeds.

Two lesbian couples filed suit in a Tulsa, Okla., federal court against the federal Defense of Marriage Act, a 1996 law that gives states the option of not recognizing another state’s same-sex “marriages.” If the lawsuit is successful, then all 50 states could be forced to legalize same-sex “marriage.”

It is the seventh federal lawsuit against the Defense of Marriage Act and it comes as the same-sex “marriage” issue is being cited as a reason for social conservative victories nationwide. The 11 amendments passed with an average of 70.1 percent of the vote.

“[T]he proponents of marriage for same-sex couples are desperate to evade democracy,” Glen Lavy of the Alliance Defense Fund, a pro-family legal organization, told Baptist Press. “They have no interest in democracy. They want to have the courts decide.”

Homosexual activists, Lavy said, hope to prove that the U.S. Constitution guarantees the right of homosexuals to “marry.”

“That’s why it’s so hypocritical for people to say, ‘Well, this should be a state issue.’ Yeah, it should, but the federal courts aren’t going to allow it to be. And the homosexuals certainly don’t want it to be,” said Lavy, senior vice president of ADF’s Marriage Litigation Center.

The state marriage amendments prevent state courts from legalizing same-sex “marriage” like Massachusetts’ high court did. The amendments, though, are vulnerable in federal court.

The lawsuit filed in Tulsa challenges not only the federal Defense of Marriage Act but also the Oklahoma marriage amendment, which passed by a margin of 76-24 percent.

It is the second such federal lawsuit against a state marriage amendment. The American Civil Liberties Union also is in federal court challenging Nebraska’s marriage amendment, which passed in 2000 by a margin of 70-30 percent.

When Congress passed the Defense of Marriage Act in 1996, many observers believed it was a fatal blow to the same-sex “marriage” movement. Some 38 states took advantage of the law by passing “mini DOMAs” banning same-sex “marriage. Including the 11 new states, 17 states also have passed marriage amendments to their respective constitutions.

Even though homosexual activists took a step back on Election Day, their strategy is still intact. For instance, without a marriage amendment to the U.S. Constitution, there is nothing to prevent the Supreme Court from legalizing same-sex “marriage” nationwide.

On the federal level, homosexual activists are targeting the Defense of Marriage Act, arguing that it violates the U.S. Constitution’s full faith and credit clause, which states that “full faith and credit” must be given in each state to the “public acts, records, and judicial proceedings” of every other state. If a court equates “public acts” and “records” with marriage licenses, then DOMA likely will be struck down.

Homosexual activists also have lawsuits pending in eight states that do not have marriage amendments — California, Connecticut, Florida, Indiana, Maryland, New Jersey, New York and Washington.

Their legal strategy underscores why they were discouraged but not despondent following the election. They won a major “gay marriage” victory in Massachusetts and are optimistic that they will win in other states. Their next victory seems most likely to be in California, New Jersey or Washington.

“If we don’t amend the federal Constitution, I think there’s a good chance that at some point they will win,” Lavy said of homosexual activists. “All they have to do is find some judge out there somewhere who thinks that his opinion is more important than what the law is. We certainly had U.S. Supreme Court justices who felt that way when it came to the Texas sodomy law.”

Although seven challenges to the federal Defense of Marriage Act are pending, the major homosexual activist groups — such as Lambda Legal and the ACLU — have yet to file suit. The reasoning is simple: They hope first to strengthen their case by winning several more same-sex “marriage” cases on the state level. If three or four states have legalized same-sex “marriage,” then the Supreme Court may be more likely to overturn DOMA, homosexual activists argue.

The ACLU made that argument in a post-election statement: “[I]t is important to remember that the passage of these amendments does nothing to stop the ACLU’s efforts to achieve full recognition of same-sex couples.”

Similarly, Matthew A. Coles, director of the ACLU’s Lesbian & Gay Rights Project, argued in September that the “best way to win the marriage for same-sex couples is to win in as many states as we can before we head to the Supreme Court.”

But other homosexual activists have been more blunt. After pro-family groups went 11-for-11 in passing marriage amendments on Election Day, Matt Foreman of the National Gay and Lesbian Task Force told the Associated Press: “This issue is going to be resolved by the U.S. Supreme Court, and it’s not going to give a [expletive] what these state constitutions say.”
For more information about the national debate over same-sex “marriage,” visit http://www.bpnews.net/samesexmarriage

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  • Michael Foust