by John M. Curtis
(310) 204-8700

Copyright July 13, 2004
All Rights Reserved.

ashington's dog-and-pony show continued with the Senate rejecting [48-50] a Republican-sponsored amendment to the U.S. Constitution banning gay marriage. Faced with mounting casualties in Iraq, President George W. Bush threw his weight into a constitutional ban on gay marriage, insisting that activist judges shouldn't be allowed to redefine marriage. It's easier throwing a bone to social conservatives than facing changing times. “This issue is not going away,” said Senate Majority Leader Bill Frist (R-Tenn.), conceding defeat but threatening to revisit the issue in the near future. With terrorism threatening this summer's conventions and the November election, wasting precious time on gay marriage seems like a dereliction of duty. Instead of dealing with dangerous deficiencies at the CIA and losses in Iraq, the Senate prefers to waste taxpayers' money.

      Massachusetts' Supreme Judicial Court put gay marriage in the headlines, declaring “civil unions” unconstitutional because it created “separate but equal” partnerships, outlawed by Brown v. Board of Education. Across the country, San Francisco mayor Gavin Newsom got into the act, ordering city hall to issue marriage licenses to gay couples. California's Supreme Court now must decide whether Newsom violated California's Defense of Marriage Act and whether the law is flawed. Applying the “separate the equal” doctrine to gay marriage, the Massachusetts High Court undermined social conservatives defining marriage as a legal relationship between a man and woman. Making gay marriage a civil rights issue opened a can of worms for politicians whose religious views may violate the Establishment Clause, separating church and state.

      Supporting a constitutional amendment banning gay marriage opens Bush to unwanted controversy, watching approval ratings head south. Many Democrats and Republicans feel the issue of gay marriage ought to be left to the states. “When it comes to conferring legal status on relationships, that is a matter that should be left to the states,” said Lynne Cheney, wife of Vice President Dick Cheney, whose daughter is a self-proclaimed lesbian. According to the proposed amendment, a marriage in the U.S. “shall consist only of a man band woman,” ignoring the plight of gays and lesbian seeking equal protection under the law. If the Massachusetts High Court is correct, then gay marriage is indeed a civil rights issue already protected by “due process.” Unwilling to touch the issue, the U.S. Senate rebuked house Republicans, pushing hard to amend the constitution.

      President Bush was “deeply disappointed” with the vote but vowed that “activist judges and local officials in some parts of the country are not letting up in their efforts to redefine marriage for the rest of America—and neither should defenders of traditional marriage flag in their efforts.” Viewing gay marriage as a states rights issue totally ignores what the Massachusetts' High Court regards as a 14th amendment issue. If gay partnerships or civil unions perpetuate outlawed “separate but equal” treatment, then gay marriage must be decided by the U.S. Supreme Court. Marriage is both a religious and secular institution. Objecting to gay marriages simply because it's not approved by the bible or in today's churches violates the “establishment” clause, maintaining the wall between church and state. Marriage can't be defined by religious conservatives committed to preserving church traditions.

      Dishing the gay marriage to the states fails the “full faith and credit clause,” requiring the states to uphold federal laws, no matter how they deviate from local customs. Civil rights aren't a “states rights” issue, regardless of how communities feel about local customs. If gay marriage is indeed a civil rights issue, then the federal government must uphold relevant constitutional guarantees, like the equal protection. Even state-approved defense of marriage acts can't conflict with constitutional protections, including, as the Massachusetts High Court pointed out, domestic partnerships or civil unions that perpetuate “separate but equal” treatment. President Bush is right that local judges or officials shouldn't legislate from city hall or local courts. State supreme courts—not local officials—must try to resolve controversies before getting tested in federal courts.

      Before approving new constitutional amendments, the senate must determine whether current defense of marriage legislation violates the constitutional rights of gays and lesbians, defining marriage as a legal relationship between a man and a woman. Religious traditions have their place, but the complexity of today's society requires more in-depth analysis. Gay marriages might run counter to traditional marriage, but the state has a compelling interest in assuring all citizens have equal protection to under the law. Before enacting constitutional amendments, it must be determined whether today's ban on gay marriage violates basic constitutional rights. Whether the religious community likes it or not, civil marriages may carry certain constitutional protections not available to religious marriages. No contractual relationship—marriage included—can run afoul with basic constitutional rights.

About the Author

John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.

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