WASHINGTON (BP)–The future of America is at stake in the struggle over legalizing same-sex “marriage,” witnesses told a Senate subcommittee hearing Sept. 4.
The Judiciary Committee’s Constitution Subcommittee met to discuss the best way to protect the 1996 Defense of Marriage Act, which gives states the option of not recognizing another state’s same-sex “marriage.” It also states that the federal government does not recognize such unions.
While subcommittee Chairman John Cornyn, R.-Texas, repeatedly said the hearing was not about a constitutional amendment banning same-sex “marriage,” much of the discussion focused on such a proposal. An amendment has been introduced in the House of Representatives and has some 75 cosponsors.
“Marriage is that important. Our civilization is at stake,” Michael Farris, president of and professor of government at Patrick Henry College in Virginia, said concerning an amendment. “… If we get to the stage of determining if a constitutional amendment is necessary, I for one think that the subject is well worth appearing in the United States Constitution.”
One of the day’s more significant moments came when Farris and Democrat Sen. Charles Schumer of New York debated the merits of passing a constitutional amendment. Calling the Constitution a “sacred document,” Schumer said he is always reluctant to pass any constitutional amendment.
“We have put them in the Constitution either because you have to overrule a law or to change the structure of the government,” he said, speaking to Farris. “You are advocating … a new view of constitutional amendments.”
But Farris said the standard in passing a constitutional amendment is so high that its passage alone gives it merit. An amendment must pass two-thirds of both the House and Senate and three-fourths of all state legislatures.
“If that number of people think that the basis of our society is under attack by the judiciary, then, by all means, we should amend the Constitution,” Farris said. “That’s what democracy is all about.”
Schumer asked, “Even if a statute could do the same job?”
Farris answered, “No statute will cure judicial activism.”
Schumer and the other four Democrats on the panel said either they opposed a constitutional amendment or that such discussion was premature.
Conservatives fear that the Defense of Marriage Act (DOMA) will be struck down by a federal court, leaving states no protection from a single state — such as Massachusetts — pushing same-sex “marriage” on the rest of the country.
Including Farris, three legal experts testified at the hearing, and two of them said that DOMA is likely to be found unconstitutional by a federal court. That would happen, they said, when a same-sex couple acquires a marriage license in one state and then sues to have it recognized in other states. DOMA could be found unconstitutional either on equal protection grounds or by a specific interpretation of the Full Faith and Credit Clause, they said.
Four states currently are facing lawsuits from homosexual couples seeking marriage licenses.
“Recent events have suggested that the Defense of Marriage Act may be, and probably is, in trouble,” said Gregory Coleman, former solicitor general for the state of Texas. “… Therefore, the only process that can be undertaken to address that … is through a federal constitutional amendment.”
Coleman said two Supreme Court rulings strengthen the legal arguments of those pushing for same-sex “marriage.” One is Lawrence v. Texas, which struck down states’ anti-sodomy laws. The other is Romer v. Evans, a 1996 decision which overturned a Colorado constitutional amendment that had banned laws granting civil rights status to homosexuals.
Farris said the belief that DOMA is unconstitutional is a widely held view in law review periodicals.
“It is the dominant view, and I can tell you … that what’s the dominant view in the law reviews today will be the dominant view of the courts in a generation,” he said. “[But] I don’t think we’ll have a generation — I think it will be five years at the most that DOMA would last, if it would last that long.”
But a third legal scholar, Dale Carpenter, professor at the University of Minnesota Law School, disagreed.
The fact that it is in a “law review article is no guarantee that a court will ever pay attention to it …,” Carpenter said.
Two witnesses, Ray Hammond, pastor of Bethel AME Church in Boston, and Maggie Gallagher, president of the Institute for Marriage and Public Policy in New York, spoke about the negative social ramifications of same-sex “marriage.” Both oppose homosexual “marriage.”
“We must by word and deed,” Hammond said, “make real the role of marriage as the place in which the great divide in the human race — the gender divide — is reconciled as mothers and fathers build their own healthy relationships and model those relationships before the next generation.”
Gallagher argued that children are central to the purpose of marriage.
“Of course, not every married couple has children, but every husband and wife is capable of giving any child they create or adopt a mother and a father,” said Gallagher, who is also a national columnist.
“… Moreover, every man or woman who is faithful to their vows — and married people are more faithful than people who are not married — is not going to be making fatherless children across multiple households. That way, even childless marriages help serve and sustain this basic marriage issue.”
Gallagher later said that if “two mothers are just the same as a mother and a father, then a woman and her mother are just the same as a mother and father.”
Carpenter said that historically states have acted as laboratories in discovering what types of changes to law are necessary. He pointed to minimum wage laws as an example.
Referring to same-sex “marriage,” he asked, “Will parents leave their children? Will husbands leave their wives? … Well, let’s find out in a couple of states if some form of recognition for same-sex couples actually leads to these terrible results.”
Keith Bradkowski, a homosexual who lost his partner in the terrorist attacks of Sept. 11, 2001, testified, saying he was puzzled by the hearing’s purpose.
“Jeff and I only sought to love and take care of each other,” he said. “I do not understand why that is a threat to some people and I cannot understand why the leaders of this country would hold a hearing on the best way to prevent that from happening.”
Gallagher said that if same-sex “marriage” is legalized the nation will be “making a powerful statement” that “children do not need mothers and fathers.”