The new media spin is that President Bush may be making a mistake by supporting a constitutional amendment prohibiting same-sex marriage -- not because the American public supports same-sex marriage (it doesn't) but because voters are reluctant to mess with the Constitution.
Don't bet the farm on it. As George Washington University law professor Jonathan Turley warned, "The San Francisco controversy has given this amendment a powerful momentum on Capitol Hill."
Bush has not endorsed a particular amendment, although the Bushies have praised the Federal Marriage Amendment sponsored by Rep. Marilyn Musgrave, R-Colo., that would prohibit states from legalizing same-sex marriage. Critics are right to point out that such a federal amendment would limit states' rights.
Bush, however, is correct in saying that a federal marriage amendment would protect states' rights by releasing states from the U.S. Constitution's Full Faith and Credit clause's requirement that states recognize marriages conducted in other states.
In 1996, President Clinton signed the Defense of Marriage Act, which also freed states from any requirement to recognize out-of-state same-sex marriages. Bush now argues that if activist courts can override state law, they can override the federal Defense of Marriage Act. Hence, he argues, the need for an amendment.
Polls indicate that the public is split on a constitutional amendment. But Karlyn Bowman, editor of "Opinion Pulse" for the American Enterprise Institute, noted that no poll has established that voters are aware that states may be able to export their same-sex marriage laws to other states. (Indeed, Democratic Sens. and Oval Office contenders John Kerry and John Edwards both say they oppose the amendment because they want to leave marriage up to the states -- when they must know that states could be forced to accept other states' nuptials.)
Imagine the likely reaction when same-sex couples married in San Francisco or Massachusetts (where the top court has ordered same-sex unions starting in May) return to, say, Peoria, Ill., and demand that their employers provide health benefits for their new spouses. Support for a constitutional amendment is likely to grow if people in Tennessee or Texas believe the mayor of San Francisco or four Massachusetts judges can dictate marriage laws in their states.
The first openly gay member of Congress, Rep. Barney Frank, D-Mass., told the San Jose Mercury News that he opposed San Francisco Mayor Gavin Newsom's nuptials because "If people believe that marriage in one state is going to have to be recognized in every state, we lose votes."
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