Marriage Debate Heats Up

By Russell Shaw
Herald Columnist
(From the issue of 3/17/05)

People who understand how bad an idea same-sex marriage really is owe a debt of gratitude to New York City trial court Judge Doris Ling-Cohan. Just when interest in a constitutional amendment to ban homosexual marriage seemed to be flagging, Judge Ling-Cohan's in-your-face ruling that homosexuals have a right to marry in the state pumped energy into the amendment drive.

Earlier, moral conservatives were rattled by President Bush's comments in a Washington Post interview saying that even though he considers the amendment necessary, not enough senators agree, and nothing will happen unless that changes. His laconic rhetoric was a letdown from his strongly voiced support of the amendment during the presidential campaign. When conservatives complained, the president started sounding enthusiastic again.

That aside, Bush's reading of the current situation must be taken seriously. He put it like this: "The point is … that senators have made it clear that so long as DOMA [the Defense of Marriage Act] is deemed constitutional, nothing will happen. I'd take their admonition seriously."

DOMA is Clinton-era federal legislation enacted in 1996 to immunize states against having to recognize homosexual marriages performed in other states that allow them. (So far, Massachusetts is the only one.) Bush's point was that as long as DOMA stands, a significant number of senators will leave it at that and not attempt to amend the Constitution. The announcement that Senate Majority Leader Bill Frist (R-Tenn.) would be a sponsor of the amendment doesn't alter that.

DOMA is a states' rights approach. States that want to recognize homosexual marriage can do so, states that don't, don't have to. Hardly an ideal solution, but better than nothing. But will DOMA stand in the face of legal challenges by homosexual rights groups? That's far from certain.

Note that President Bush also said of the constitutional amendment, "I do believe it's necessary." Like many other people, he realizes that the Defense of Marriage Act could be overturned by activist courts — eventually, perhaps the Supreme Court itself — gung-ho to force a newly discovered constitutional right to gay marriage on the nation.

So far it hasn't happened. Last month, in fact, U.S. District Court Judge James S. Moody in Tampa, Fla., upheld DOMA in the first direct test of the law. But the homosexual rights groups will press on with other court cases and appeals.

Things like Judge Ling-Cohan's well-publicized decision in New York simply heighten the pressure for gay marriage. Note by the way that New York City's Republican Mayor, Michael Bloomberg, will appeal the ruling but supports homosexual marriage himself. This is called having your cake and offending everybody.

And the Supreme Court? Less than two years ago, it struck down state laws against sodomy, even as Justices Sandra Day O'Connor and Anthony Kennedy offered assurances this had no bearing whatsoever on same-sex marriage. Who said Supreme Court justices have no sense of humor?

Currently the court is resting on its oars. It lately turned down a case challenging gay marriage in Massachusetts and another challenging a Florida ban on adoptions by same-sex couples. But don't be deceived — the Supreme Court will re-enter this thicket when it thinks the time is ripe. A case or cases testing the constitutionality of DOMA could be the occasion.

"There's one national goal, and that is to make sure Congress defeats any form of constitutional amendment seeking to prohibit same-sex marriage," the head of the National Gay and Lesbian Task Force, Matt Foreman, told The Washington Post. Are the White House and the Senate listening? They should.

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