EDITORS’ NOTE: This is the ninth 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)-When the Massachusetts high court issued its controversial ruling Nov. 18 backing same-sex “marriage,” its effect was felt far outside the Bay State.
Lawmakers in the nation’s capital debated what response — if any — was needed, but state legislators wasted little time. In the weeks since Nov. 18, state legislators from Arizona to Virginia have proposed resolutions, laws and amendments — seeking to prevent their respective state from becoming the next Massachusetts.
More than 30 states have considered some form of action. One of those is Missouri, where state Rep. Kevin Engler, a Republican, favors strengthening his state’s laws against same-sex “marriage.”
“I believe that our moral tradition teaches that every individual has dignity and value in God’s sight, but that we have to determine that the institution of marriage [is] between a man and a woman,” Engler told Baptist Press. “That has nothing to do with how we treat people. We already restrict marriage. You can’t marry somebody under a certain age or [someone who is] too closely related or [someone who is] already married to somebody.”
Engler has sponsored a state constitutional amendment stipulating that Missouri will recognize only marriage between a man and a woman. The state already has a law against same-sex “marriage” on the books, but a constitutional amendment is considered greater protection against court rulings.
Missouri is not alone. At least 19 other states are considering state constitutional amendments — not counting Oregon, where a petition drive has begun to put an amendment before voters this fall.
The Massachusetts court ruling has been the catalyst. While 38 states have “defense of marriage acts” banning the recognition of same-sex “marriage,” only four of them — Alaska, Hawaii, Nebraska and Nevada — have dealt with the issue within their respective state constitution. The rest of them define marriage in a statute.
The distinction is important: If Massachusetts had had a marriage amendment, that court would have had its judicial hands ties, since it is bound by the state constitution. Massachusetts is one of only 12 states without a defense of marriage act.
Arizona has been another key state in the cultural battle over same-sex “marriage.” Last October a state appeals court refused a request by two homosexual men to legalize same-sex “marriage.” Legislators in that state are now considering a state constitutional amendment.
Arizona state Sen. Jack Harper, a Republican, is the bill’s sponsor. He told Baptist Press there is a concern that the Massachusetts decision could spread nationally.
“That ill-advised judgment in Massachusetts was based on an ill-advised judgment of the Supreme Court,” Harper said of the Supreme Court’s Lawrence v. Texas decision striking down anti-sodomy laws. “And I think that gives liberals in the judiciary branch an out.”
Opponents of state constitutional amendments argue that it’s unnecessary and divisive to pass an amendment when a law against same-sex “marriage” is already on the books. Harper said that argument misses the point.
“Even though our statutes in Arizona clearly define marriage as between one man and one woman, I’m leery of the courts and activist judges,” he said.
President Bush made a similar case in his State of the Union address when he criticized “activist judges” and said a federal constitutional amendment might be the “only alternative.” Bush subsequently backed an amendment.
Underscoring the power of the bully pulpit, Bush’s State of the Union comments influenced Georgia state Sen. Bill Stephens, a Republican, who said the speech helped lead the Georgia legislature to consider a state constitutional amendment.
“That was another reason why we decided here in Georgia to go ahead and take this step,” Stephens, the majority leader, told BP.
But state laws and state amendments can do only so much. Some scholars fear that they will be struck down in federal court on the grounds that they violate 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.
For defense of marriage acts to be struck down, same-sex couples must first obtain a marriage license. In Massachusetts, that could come in mid-May. Same-sex couples then could move to another state and sue in federal court to have their licenses recognized there.
There seems to be growing support on the state level for a federal marriage amendment. Legislators in Kentucky, Mississippi, Oklahoma and Virginia have passed resolutions urging Washington to pass a federal marriage amendment.
A federal marriage amendment would need to pass two-thirds of the Congress to make it to the states. It would then need ratification by three-fourths of the state legislatures or by conventions in three-fourths of the states.
Harper wants the opportunity to vote on it.
“I support it,” he said of the federal amendment. “If Congress is able to pass it, and it comes to the states to be ratified, I will definitely be in favor of ratifying it.”
Engler, the Missouri state representative, also favors a federal amendment.
“I think we need to do it, because I think that we have to value the sanctity of the institution of marriage,” he said. “It would be much easier to do on the federal level, but if we’re not going to, we’re going to try and do it on the state level.”
Stephens, the Georgia senate majority leader, said a federal marriage amendment “would face a warm reception in Georgia.”
“I think it would pass the general assembly,” he said.
Of course, anytime a politician takes a stand on a social issue criticism will follow. Stephens said he has received some criticism — mostly in Atlanta — for proposing the state constitutional amendment, but most of the response has been positive.
“I would say it’s been overwhelmingly positive, and I think it’s the right thing to do,” he said.
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