WASHINGTON (BP)–Supporters and opponents of a constitutional marriage amendment presented their case to a Senate subcommittee March 3, with some saying it is the only way to avoid nationalized same-sex “marriage” and others saying it would insert discrimination into the Constitution.
“This is no longer just a state issue,” Sen. John Cornyn, R.-Texas, said. “This is a national issue.”
The Senate Judiciary Committee’s Constitution Subcommittee held hearings on “judicial activism vs. democracy” and listened to witnesses testify whether the controversial court decision in Massachusetts threatens marriage laws nationwide. That state’s high court has ruled that marriage licenses should be given to same-sex couples in mid-May.
The testimony was far-reaching, covering everything from the purpose of marriage to the chances that the federal Defense of Marriage Act could be struck down in federal court.
Cornyn, the subcommittee chairman, said the controversy over same-sex “marriage” requires a “national solution,” while Sen. Russell Feingold, D.-Wis., said President Bush’s backing of an amendment is a “divisive political exercise in an election year.” An amendment would “write discrimination” into the Constitution, Feingold said.
But Richard Richardson, a black pastor who serves in an African Methodist Episcopal church in Boston, said he is a “proud member of the Democratic Party” who supports an amendment. He said the defense of marriage should be a bipartisan issue. He said he was speaking on behalf of himself and the Black Ministerial Alliance of Greater Boston.
“The defense of marriage is not about discrimination. As an African American I know something about discrimination,” Richardson said. ”The institution of slavery was about oppression of an entire people. The institution of segregation was about discrimination.
“… The traditional institution of marriage is not discrimination, and I find it rather offensive to call it that. Marriage was not created to oppress people. It was created for children. It boggles my mind that people would compare the traditional institution of marriage to slavery.”
The NAACP’s Hilary Shelton, the panel’s other black member, disagreed, saying that the current version of the Federal Marriage Amendment would discriminate. Shelton, director of the NAACP’s Washington Bureau, said his organization has not taken a position on same-sex “marriage” but believes that Congress should “waste no more time” on an amendment when there are more important issues. He specified that his opposition pertains only to the current amendment’s language.
Much of the discussion focused on the Defense of Marriage Act and whether it could be ruled unconstitutional under the Constitution’s full faith and credit clause.
Lea Brilmayer, a law professor at Yale Law School, said she believes that DOMA will be upheld in federal court. She said the full faith and credit clause has never been used to force one state to recognize another state’s marriage that was contrary to the public policy of the first state.
“I wouldn’t expect that at any point in the future that it’s going to be read to reach that result, either,” she said.
Cornyn asked Brilmayer what would happen if a state’s public policy was ruled unconstitutional. Could DOMA be struck down in such an instance?
“It has to be a valid public policy [to be constitutional],” she said.
Nebraska Attorney General Jon Bruning predicted that the federal courts would overturn the federal Defense of Marriage Act. His own state’s defense of marriage act is being challenged before a federal judge.
“[Nebraska’s law] will be struck down by this federal judge,” Bruning said. “He has said so. And I think state statutes face the same risk. So state constitutional amendments [and] state statutes are at risk. Why is federal DOMA not at risk? The only thing that can remain firm is a federal constitutional amendment.”
Bruning, who supports a federal amendment, said America “is heading down a path that will allow the judiciary branch to create a national policy for same-sex marriages.”
Several of the panelists emphasized the importance of having a mother and father in the rearing of children.
Daniel de Leon Sr., a Hispanic pastor who serves as minister of Templo Calvario in Santa Ana, Calif., said society’s view of marriage has become self-centered.
“Adults seem to care more and more about one thing — themselves,” he said. “This is one of the reasons why 50 percent of marriages wind up in divorce. We must strengthen marriage, not weaken it. I fear that if we start to abolish marriage laws in our nation, we’ll go further down the path of teaching people that marriage does not matter for the well-being of children. It only matters for the pleasure of adults.”
Richardson, the Boston pastor, said the husband-wife relationship brings unique qualities to a family. For instance, he said, men teach young boys not to treat women as objects.
“Who can teach that to a young boy except another man that has experienced it?” he asked.
Sen. Richard Durbin, D.-Ill., noted that he voted for the Defense of Marriage Act but that he believes religious values should not be “enshrined” into the Constitution.”
“Sanctity is your business, Reverend, legality is our business,” Durbin said to the panelists.
But de Leon and Richardson disagreed with Durbin’s argument and said that human history — and not simply religion — supports their belief.
“What has been espoused and supported by the human race for who knows how many years all of a sudden is up to question,” de Leon said. “History tells us that marriage has been recognized by every culture between a man and a woman since time immemorial.”
Said Richardson: “[Y]ou can’t separate secular from religious.”
Chuck Muth, president of Citizen Outreach, said he’s a conservative who believes that the issue should be left to the states.
“[E]ven if somewhere down the road DOMA is ruled unconstitutional by the Supreme Court, then the appropriate remedy would be a constitutional codification of DOMA’s protection of states’ rights, not a national one-size-fits-all prohibition on same-sex marriages,” he said.
Maggie Gallagher, a national columnist and president of the Institute for Marriage and Public Policy, said those who argue that traditional marriage is biased need to be careful.
“I would like you to listen very carefully to what we’re saying here,” she said. “We are saying that anyone who believes there’s something special about the relationship between a husband and a wife, who can become a mother and a father, is just like a bigot who thinks there’s something inferior about black people.”
Such a belief, if upheld by courts, would have widespread implications on schools and businesses, Gallagher said.
For more information on the debate over same-sex “marriage,” visit BP’s story collection at: