Tactics matter

Posted: Feb 26, 2004 12:00 AM

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."

Hastings College of the Law professor Vikram Amar believes there is "no clear indication" that state courts across the country will force their states to recognize out-of-state same-sex unions. He opposes an amendment while Americans are "feeling their way" through the issue.

I'm against the amendment, too, but there is a strong indication that the courts will rule against states' rights. Two San Francisco judges, fully aware of state law, decided they didn't have to uphold laws that limit marriage to a man and a woman -- in deference to Mayor Newsom's belief that those laws violate the state's equal protection clause. Judges James Warren and Ronald Quidachay could have stopped illegal same-sex weddings until hearings are held on the matter next month, but they didn't feel they had to.

Let me explain what angers me the most about Newsom's nuptials and state courts' failure to immediately uphold the law: I voted against Proposition 22, which prohibited same-sex marriage in California and was passed by 61 percent of voters in 2000. Still, I believed it was only a matter of time before voters accepted same-sex marriage. A voter mandate would be the best way to win the issue because it would produce less resentment in the years that followed.

As Turley observed, American courts were ruling for gay rights as they saw societal acceptance grow. "The irony is that the gay-rights movement was at the very edge of success," said Turley. "And it now stands to lose much advantage." If a marriage amendment passes, it could set back gay rights for decades.

San Francisco's Winter of Love sends two messages to America. The good message is that many same-sex couples want to spend the rest of their lives together. The bad message is that if pro-gay politicians have power, they will use it to break the law, and the establishment -- the courts and the attorney general -- will aid and abet them.

Until now, Bush had resisted pressure to endorse a marriage amendment, even as Vermont and Massachusetts legalized same-sex unions. Only when San Francisco broke the law, and the courts let the city do it, did Bush endorse a constitutional amendment. Said Turley: "This controversy in San Francisco could not have been better planned by the opponents of gay rights."