When the Supreme Court heard arguments in 2003 on the constitutionality of a Texas law banning same-sex sodomy, the lawyer arguing against Texas implied that the majority in that state had no right to enact laws imposing their vision of morality on the sexual practices of others.
Justice Antonin Scalia begged to differ. "But society always … makes these moral judgments," Scalia said. "Why is this different from bigamy?"
When the Supreme Court eventually declared in Lawrence v. Texas that same-sex sodomy was a "right," Scalia predicted in dissent that the court was paving the way for same-sex marriage to be declared a "right." The Massachusetts Supreme Judicial Court soon proved Scalia right by citing Lawrence when it did exactly that.
Thus, Scalia’s question is more pertinent today than it was three years ago: If a court can declare same-sex marriage a "right," why not bigamy, polygamy, consensual incest or group marriage?
The Founders formally affirmed their belief in “the Laws of Nature and Nature’s God” and that all men “are endowed by their Creator with certain unalienable rights.” They believed in immutable God-given moral rules — a natural law — that the laws of men are bound to follow.
Do Americans believe the Creator endowed us with an unalienable right to same-sex marriage? Obviously not. Nineteen states recently have passed ballot initiatives banning same sex marriage. Twenty-six states have statutes that do so.
Liberal judges, however, are attacking these laws. Last year, a federal judge threw out a Nebraska marriage amendment that had been approved by 70% of the voters. Last month, a state judge threw out a Georgia marriage amendment approved by 76% of the voters.
That is why Sen. Wayne Allard (R.-Colo.) proposed, and President George Bush supported, the federal marriage amendment that came up for a vote in the Senate last week. This amendment simply defines marriage as the union of a man and a woman and prevents judges from overturning marriage laws passed by state legislatures and initiatives. The amendment would not prevent states from legalizing civil unions or restricting the range of marriage-like benefits states could extend to a same-sex civil unions. Vermont, for example, has legalized same-sex unions that mirror marriage in all but name. The Allard amendment would not overturn that far-left state law. But it would stop judges from overturning the laws of states such as Nebraska and Georgia and forcing them, by judicial fiat, to adopt laws like Vermont’s.
Unfortunately, the Allard amendment won 49 votes, while 67 were needed for approval. (see “Capital Briefs” for the names of Republican defectors).
I asked senators last week if they believe government should be able to define marriage anyway it wishes.
I’ve been talking with Democratic senators about the federal marriage amendment and they all say they want states’ rights, states’ rights, states’ rights. So can you give me a clear explanation why we need a constitutional amendment that will override states’ rights in this case?
Sen. Sam Brownback (R.-Kan.): Because it’s going to be defined either by the courts or the legislature, and the courts have already shown they are willing and have overruled and overturned state constitutions.
Like in Nebraska?
Brownback: Yes, this is in Nebraska and it will be taken up in other states, and, plus, the constitutional amendment just defines marriage as a union between a man and a woman, and it says if you’re going to change that definition, the legislature has to do it. It can’t be forced by the courts. There should be no Democrat opposed to that.
How urgent is this matter? Why do we need to immediately address it?
Brownback: I think we need to take it up right now. That’s why you’ve seen a number of states amend their constitution in the past couple years, and you’ll see many more. The courts are doing it if the legislatures don’t.
Since you aren’t going to vote for the marriage amendment, do you think government should be able to define marriage in any way it wants?
Sen. Lincoln Chafee (R.-R.I.): Well, the states are doing that now.
And that’s okay?
Chafee: I have my own feelings that if people love each other and want to make a commitment, they should be able to do that. Who’s at harm? We have bigger issues to worry about.
Do you think government should be able to define marriage in any way it wants?
Sen. Susan Collins (R.-Maine.): I think it’s up to the states. It’s not up to the federal government. Historically, states have been responsible for the regulation of marriage, and I see no reason to change that system. For purposes of federal law, we have the Defense of Marriage Act on the books and it’s not been struck down, and thus I see no need for a constitutional amendment at this time. I do oppose legalizing same-sex marriages, and were I a member of the Maine legislature, I would vote to ban same-sex marriage.
What we’re addressing is the fundamental question of whether government, federal or state, should be able to define marriage in any way that it wants. When should we address this and how do you feel about that question?
Sen. Richard Durbin (D.-Ill.): We’ve already come to that conclusion. That’s been established for a long time. States established the standards for marriage.
Even if they want to do it in any way that they want?
Durbin: Yes, and they came through and said in the Defense of Marriage Act that what your state decides does not bind my state and that has not been overruled. So, that is the consistent rule in this country. But what they have suggested is that we want a federal preemption of the states’ authority. Now a number of states have already acted on this, they’ve already responded to this. There is only one state that has legalized gay marriage in the United States. It’s much like the six incidents of flag-burning last year. They have one state, Massachusetts, which has legalized it, and they have an existing federal law saying no other state has to recognize that fact. It hardly suggests a constitutional crisis, one that preempts every other issue that we could be considering in the Senate.
Even if it’s only in Massachusetts, should government be able to define marriage in any way it wants?
Sen. Teddy Kennedy (D.-Mass.): States have historically, since the founding of this country, made the judgment and decision to recognize various civil unions. Why are we going to change that? There’s no need to do it.
I know you oppose the marriage amendment, but I need to ask you if you think government should be able to define marriage in any way it wants.
Sen. Patrick Leahy (D.-Vt.): States can, sure. And states always traditionally have. I have no problem with that. The states, ever since the beginning of this country, states have defined what is marriage, they have defined what age you can get married at, whether you need your parents’ permission if you are below a certain age, competence for marriage. States have always done that, and I have no problem with that. They can define it as a man and woman, they can define it as any way that they want. To amend the Constitution [unintelligible] we should also amend the Constitution to define what are the grounds of divorce, to amend the Constitution to define the grounds for adoption and these types of things. These things have always been best left up to the states. They should be left up to the states. The states should work these things out. That’s why I object to this, because, as I said yesterday, in a long speech we shouldn’t — we should let the states define it in any way that they want.
Now, I have to jump in and ask this: You’re Catholic. Is there any contradiction between what the Catholic Church is saying and what’s happening here?
Leahy: The Catholic Church is opposed to divorce and you have a very high percentage of Catholics [divorced]. Now, I’ve been married 44 years.
Leahy: Thank you. I couldn’t survive without my wife. I don’t have any problem with that [divorce]. But what the Catholics teach and every other religion has absolutely nothing to do with amending the Constitution. States should be allowed to have states’ rights.
Do you think government should be able to define marriage in any way it wants? I mean, if you vote against this —
Sen. Patty Murray (D.-Wash.): I’ll tell you what. I can tell you that I do plan on voting against this amendment. If you need more information, you should call my office.