Cultural Conservatives are preparing to Use Same-Sex Marriage As a Wedge in 2004
Four years ago, conservative guru and activist Paul Weyrich urged the religious right to pull out of politics – the “Culture War,” he said, had been lost. But since the U.S. Supreme Court’s decision in Lawrence, which overturned state sodomy laws using language that asserted the primacy of individuals’ privacy and freedom over community disapproval, calls for a “Culture War” have returned with a vengeance, and that vengeance has been directed at the issue of same-sex marriage.
A coalition of conservative “family values” groups has pledged to mobilize more than 25 million Americans in support of a Federal Marriage Amendment to ban same-sex marriage. In October, more than 70,000 churches will distribute literature and material in support of “Marriage Protection Week,” which President Bush has endorsed. In a recent press conference publicizing the week, Richard Land of the Southern Baptist Convention vowed that the issue will affect every state and national political race in 2004. Web sites such as www.nogaymarriage.com and www.onemanonewoman.com are proliferating.
And Weyrich recently told The New York Times that, “I have never seen people so energized and activated, even more so than at the time of Roe v. Wade.”
While culturally conservative policy outfits such as the Family Research Council and the Concerned Women of America never stopped engaging in anti-gay advocacy, the groups and their allies are rallying with renewed intensity behind the Federal Marriage Amendment, one version of which was reintroduced last May by Rep. Marilyn Musgrave (R-CO) and now has 75 co-sponsors.
Several factors in addition to Lawrence have galvanized anti-gay forces: an expected decision in a challenge to discriminatory marriage laws, Goodridge v. Department of Public Health, in Massachusetts; another promising marriage equality case in New Jersey, and, of course, recent Canadian court decisions making marriage available to same-sex couples.
In September, the Senate Subcommittee on the Constitution met to hear testimony on the subject, “What is Needed to Defend the Bipartisan Defense of Marriage Act of 1996.” The hearing’s purpose was to lay the ground for consideration of Musgrave’s Federal Marriage Amendment. Asked to testify at the hearing was “pro-family” commentator Maggie Gallagher, who recently wrote a rebuttal in National Review to the “slippery slope” argument that same-sex marriage will lead to polygamy, in which she declared: “Polygamy is not worse than gay marriage. At least polygamy, for all its ugly defects, is an attempt to secure stable mother-father families for children.”
The Federal Marriage Amendment, H. J. R. 56, reads, “Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”
Critics, including the ACLU, have blasted the FMA, saying that it will not only inscribe discrimination into the Constitution, it will devastate scores of laws in cities and states across the country that grant benefits and responsibilities to domestic partners or those who enter a civil union (in Vermont). ACLU legislative advocate Chris Anders called the proposed amendment “the legal equivalent of a nuclear bomb” that would “wipe out every single law protecting gay and lesbian families and other unmarried couples.” Dale Carpenter, a conservative constitutional scholar who testified at the hearing, concurs with Anders. Carpenter testified that the language of the proposed amendment could make domestic partner and civil union laws “unenforceable in state courts.”
But supporters can’t agree on whether the law goes far enough for their purposes. Concerned Women of America, for instance, supports a different version of a federal marriage amendment that more definitively wipes out domestic partner and civil unions laws, while the Alliance for Marriage, one of the principle backers of the amendment, contends that the amendment will not do away with such laws.
Cultural Conservatives are preparing to Use Same-Sex Marriage As a Wedge in 2004
Federal Marriage Amendment Would Be a “Nuclear Bomb” for Domestic Partner and Civil Union Laws
Others on the right, including former Representative Bob Barr of Georgia, argue that the amendment is unnecessary and anti-federalist.
Barr is the author of the Defense of Marriage Act of 1996, which bars the federal government from recognizing same-sex marriage and exempts other states from recognizing same-sex marriages performed in another state (of which there are none that recognize such marriages).
The amendment’s political prospects remain unclear. Amending the Constitution is difficult. In order to pass, an amendment needs a 2/3 supermajority in both houses of Congress and subsequent passage by 38 state legislatures, usually within a specified period of time. While there have been 10,000 attempts to amend the U.S. Constitution, only 17 amendments have been adopted since the Bill of Rights. On the other hand, a decision in Massachusetts favorable to equal marriage rights could easily lead to a reprise of the swift and lopsided passage of the Defense of Marriage Act (DOMA) by more than 2/3 in each house, and 37 states have adopted DOMA-style laws since then. Even states with relatively progressive records on LGBT civil rights, such as Hawaii, have overwhelmingly adopted anti-same-sex marriage amendments.
Whatever the outcome, its political uses are clear, according to ACLU of Southern California Executive Director Ramona Ripston.
“The Federal Marriage Amendment has the potential to increase right-wing turnout in 2004, to wrong-foot candidates who are committed to lesbian, gay, bisexual, and transgender (LGBT) civil rights, to raise funds for anti-gay groups and candidates, and to preoccupy the energy and resources of LGBT civil rights activists in every state for years to come.”
OCTOBER 2003
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