Defining moments

Politics | Efforts to protect marriage continue to gain steam in the states

Issue: "Snakepit," Feb. 11, 2006

National GOP leaders didn't include marriage on their list of priorities for 2006, and President Bush didn't mention it in his State of the Union address last week. But opponents of same-sex marriage are making headway at the state level in their efforts to introduce a "defining moment" in laws that govern marriage.

This year, five more states-Alabama, South Carolina, South Dakota, Tennessee, and Virginia-are scheduled to vote on constitutional amendments that define marriage as a union between a man and a woman. They are expected to pass handily.

Those states would join 19 others that already have enshrined some form of the definition in their constitutions. Votes are pending in at least seven additional states, and voter-initiative campaigns are underway in still other states to get an amendment on the ballot.

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At the federal level, the future of the Marriage Protection Amendment, aimed at defining marriage in the U.S. Constitution, remains in doubt. The proposal in Congress to start the process failed to reach the floor in 2004. There's corridor talk it will be reintroduced in the Senate soon-in time for the 2006 congressional elections. Critics, including some leading conservatives, see the bid as an empty gesture to fire up grassroots conservative support for Republican candidates.

If introduced, it would take a two-thirds majority vote in both houses of Congress to approve the amendment and send it to the states for ratification. No one sees that happening short of conservative landslides at the polls.

The big legislative push for marriage protection dates from the mid-1990s, when it appeared Hawaii might legalize same-sex marriage. In response, Congress in 1996 passed the Defense of Marriage Act (DOMA). DOMA defined marriage for federal purposes (such as in matters of tax status, immigration, and Social Security) as a union between a man and a woman. It also backed the "right" of states to reject recognition of same-sex marriages registered in other states.

The Constitution's "Full Faith and Credit" clause says states must recognize the "acts, records, and judicial proceedings" of other states. But it also in unclear language seems to give Congress the authority, in effect, to allow a state to set limits on exactly what it recognizes.

Scores of states proceeded to pass mini-DOMAs. Most defined marriage as between a man and a woman or otherwise forbade same-sex marriages, and most denied recognition of same-sex marriages solemnized in other states. Currently, 43 states have laws aimed at protecting traditional marriage. Ironically, Hawaii was one of the first states to adopt an amendment supporting traditional marriage.

Because marriage laws can be overturned by judges who claim they are unconstitutional (as happened in Maryland last month), states began rushing to adopt constitutional amendments that uphold traditional marriage. Most of the 19 that were approved so far won vote margins of 75 percent or better; the lowest support came from Oregon and Michigan, 59 and 58 percent respectively. Strong majorities likewise are expected in the five states voting on marriage amendments this year. Many also explicitly ban recognition of same-sex civil unions and partnerships.

Some members of Congress fear that their interpretation of the Full Faith and Credit clause may not pass muster at the U.S. Supreme Court. If that happens, all of the state DOMAs could be in jeopardy. Which could mean that states that ban same-sex marriages would be required to provide full recognition and benefits to partners in same-sex marriages from other states.

The state constitutional amendments are aimed at preventing that from happening. But it would take an amendment to the U.S. Constitution to ban same-sex marriages altogether in states where they are approved-unless the voters in those states take the law into their own hands to change it.

Edward E. Plowman
Edward E. Plowman


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