The ongoing struggle over gay marriage
By JAMES AHEARN, The Record, NJ from the Web, January 19, 2005
PRESIDENT BUSH campaigned for reelection last year vowing to press for passage of an amendment to the Constitution banning same-sex marriage.
He is changing strategy. He says now he continues to support an amendment but there is little hope Congress will approve one anytime soon.
Too many senators want to defer action until courts have ruled on the Defense of Marriage laws that Congress and 40 states have already passed.
These laws restrict eligibility for marriage to opposite-sex couples. If and when courts start invalidating these statutes for discriminating against gays and lesbians, the political climate would change and a constitutional amendment might be achievable.
The president presented this rationale in an interview aboard Air Force One last week with two Washington Post reporters.
"Senators have made it clear that so long as the Defense of Marriage Act is constitutional, nothing will happen,"
Bush said. "I'd take their admonition seriously. Until that changes, nothing will happen in the Senate."
The federal law, supported and signed six years ago by President Bill Clinton, was approved by overwhelming margins in the House and the Senate.
It says in part that states that forbid same-sex marriages do not have to recognize such unions formed in other states or other countries.
Somewhere in this great nation there is doubtless a federal district judge who, given the opportunity, would strike down that provision, but legal observers say the Supreme Court is unlikely to concur.
It did its bit for gays and lesbians in 2003 when it ruled that private homosexual intercourse between consenting adults cannot be outlawed.
The gay community, hoping to expand on that precedent, began pushing for civil union or domestic partnership status and achieved it in New Jersey and five other states.
That same year gays hit pay dirt in Massachusetts, where the Supreme Judicial Court said the Legislature had to authorize marriage for gays.
Nothing less would suffice, a narrow majority of the court held.
That prompted a backlash. The Legislature took the first step toward amending the state constitution to forbid gay marriage.
Massachusetts, represented in Congress by such luminaries as Ted Kennedy and Barney Frank, has a liberal image, but I think state voters will approve the amendment, and I don't think the contest will be close.
That is how things turned out last year in 13 states that presented voters with such amendments, 11 of them in the elections that gave George Bush a second term in the White House.
The closest margin of victory for an amendment was 57 percent to 43, in tolerant, innovative Oregon.
That is a landslide. Clearly, the American public refuses to accept homosexual marriage.
Nevertheless, Congress is not ready to approve an amendment to the federal Constitution to ban it.
Both chambers considered such an amendment last year, at the president's urging, and both rejected it.
In the Senate, which in 1996 approved the Defense of Marriage Act by 85 to 14, the decisive amendment vote, on a procedural motion to cut off debate, did not get even a simple majority.
Forty-eight senators voted aye, 12 short of the minimum to end debate and 19 short of the two-thirds majority required for a constitutional amendment.
Weeks later the House voted 227 to 186 for the amendment, a majority but well short of the minimum to change the Constitution.
The votes in both chambers were bipartisan. Democrats voted no out of anger that Republicans were manipulating a moral issue for political gain.
Some Republicans joined them, concerned that the amendment would look like gay-bashing and that changing the Constitution to avert a social problem would be overkill.
At that time the Washington Post's formidable Helen Dewar cast the Senate vote as an embarrassing defeat for the president.
I'm not so sure. I suspect he was "misunderestimated" again. His ultimate objective was to rally Election Day support among Christian evangelicals and social conservatives without antagonizing suburban soccer moms.
He succeeded. His margin in Ohio, the decisive state, was bolstered by a heavy vote for a same-sex marriage ban.
Now he has announced his fallback position. There is no point trying for another vote in the Senate if it is doomed to fail, so he will continue to support the amendment but will accept the tactical assessment of Senate leaders.
That leaves the next round to the states, and it should be noted that state action, or inaction, is exactly the strategy favored by Vice President Dick Cheney, whose daughter Mary is openly lesbian.
James Ahearn is a contributing editor and former managing editor of The Record. Send comments about this column to
oped@northjersey.com.
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