"There is certainly strong opposition with 29 states amending their constitution, but this case will provide additional momentum, and we can see the day where same-sex marriage is allowed throughout the United States. People are coming to understand that this is inevitable." Chris Sanders, President of the Tennessee Equality Project
The Iowa Supreme Court voted unanimously last week to overturn a state law defining marriage as between a man and a woman. The court said the state law violated the constitutional right of equal protection. Barring legislative intervention, gay couples will be able to exchange vows in Iowa as soon at April 24. This only accelerates the national controversy: just as they had on the abortion issue, people and legislatures generally support the definition of marriage as between one man and one woman and the courts generally overturn the will of the people.
Government should have never gotten involved, but as they have for many decades, the liberals use the courts to win what they cannot gain at the ballot box. Who could have thought — back in the days of giving tax benefits to married couples and deductions for children — that some day in the future, same-sex couples would not only want to be recognized as married but also want to adopt or have their own children? Who would have thought then that the definition of the term “family” would be a subject for the courts?
So where does this put us, the majority of Americans who believe marriage is between a man and a woman? In fairness, most Americans believe there should be some kind of legal agreement or civil union for gays. In the last two presidential elections, there was practically no difference in how Bush and Kerry or Obama and McCain spoke about this issue. They all said they opposed same-sex marriage. However, the real problem constitutionally with this issue is not in the realm of the equal protection clause: it is with the Full Faith and Credit Clause.
We have the Defense of Marriage Act (DOMA), which allows one state to have same-sex marriage without other states recognizing it as a marriage. We are at the convoluted place in our country where a same-sex couple in Massachusetts can file jointly as a married couple on state forms but cannot on federal forms. Unfortunately, this will almost certainly lead to overturning DOMA under the Full Faith and Credit Clause, which requires each state to give validity to the acts, records and judicial proceedings of every other state.
Supreme Court Justice Antonin Scalia stated in his dissenting opinion in the Lawrence v. Texas decision that he feared application of the Full Faith and Credit Clause to the majority’s decision in that case might destroy "the structure… that has permitted a distinction to be made between heterosexual and homosexual unions." If Scalia’s dissenting opinion holds true, the majority ruling could potentially negate the DOMA and create a legal situation in which all states might eventually be obliged to recognize same-sex marriages in other states.
In many states, there are laws and constitutional amendments regarding same-sex marriage, sometimes called "mini DOMAs" — they restrict marriage to opposite-sex couples. Most of these "mini DOMAs" do not allow the state to honor same-sex marriages performed in other jurisdictions. As recently as November, the people of California passed Prop 8 supporting marriage as between and man and a women, and now the rollercoaster heads up another hill with the Supreme Court of Iowa overturning Iowa’s ban on same-sex marriages. Again, the people want to protect marriage, and the courts want to destroy it.
So what’s a social conservative to do? As we saw in California in November, religious people across the spectrum oppose same-sex marriage. Practicing Christians, Jews and Muslims teach against anything but traditional marriage. This group is still the majority in America, and, as Rep. Mike Pence said recently, “[T]he minority in Congress and the American people” can make a majority. He was talking about the overall climate after losing more ground in the House and losing the White House, but he is right.
I am a reluctant to support any amendment to the Constitution, but in this case, I believe that the Federal Marriage Amendment must be passed because the Full Faith and Credit Clause is being twisted in all the passing and overturning and state amendments regarding same-sex marriage. Pass the Federal Marriage Amendment, and then make civil contracts available to same-sex couples. This is not about the giving or taking away of the rights of homosexuals. Nor is it about changing religious beliefs. It is about right and wrong. Marriage is worth defending, and it can be done while respecting others. The answer is not in the courts; it is with the people.