Jeff Chiu  /  AP file
Rich Walker, left, and Brad Chilcoat are applauded after receiving their marriage licenses by others waiting in line for their licenses at City Hall in San Francisco on Sunday, Feb. 15.
By Kari Huus Reporter
updated 2/27/2004 8:28:25 AM ET 2004-02-27T13:28:25

Controversy over gay and lesbian marriage has simmered on the edges of the political spectrum for more than a decade—and that was where many politicians hoped it would stay. But the battle over the legal union and marriage benefits for same-sex couples has burst onto center stage in recent months, propelled by recent court rulings and election-year politics. It is suddenly in a place where mainstream America can hardly ignore it.

Indeed, on Tuesday President Bush announced his support for a constitutional amendment banning gay marriage, saying he wants to stop activist judges from changing the definition of the “most enduring human institution.”

Dozens of bills, court cases and state constitutional amendments are afoot to legalize or bar marriage or marriage benefits for same-sex couples in an emotional debate that spans the nation.

In the span of a couple weeks, crowds of opponents and advocates demonstrated in Boston while the Legislature there debated a state constitutional amendment prohibiting gay marriage; in neighboring New Hampshire, legislators scrambled to beef up state laws that define marriage as a heterosexual union; in San Francisco, hundreds of couples lined up to be married after the mayor there opened the gates of city hall to same-sex marriage, as opponents scrambled for ways to halt the process; and then the Cook County clerk in Chicago--the country's third- largest city--said he was looking at granting marriages to same sex couples, after the Mayor Richard Daley indicated he would "have no problem" with the move.

One reason for the flurry of activity is that rulings in one state are widely expected to spill over to others. The most recent is a Supreme Court ruling in Massachusetts that legalizes marriage for same-sex partners beginning on May 17. It is the clearest endorsement so far in the United States of gay unions and will raise questions about all aspects of rights, benefits and responsibility for these new spouses outside of Massachusetts.

"Say one partner is in the hospital in New York. Are there visitation rights?," says Jill Hasday, visiting professor of law at the University of Michigan and associate professor at University of Chicago Law School. "Or, for instance, in many states you can sue for witnessing death of partner. Suppose you are in New York and want a divorce and they have commingled property or kids."

"Eventually," she says, "people who now live in Massachusetts will move to other states, and there will be all these ways that other states will have to adjudicate their status."

Bringing out the big guns
With the Massachusetts ruling imminent, opponents of same-sex marriage pre-emptively introduced the Federal Marriage Amendment, which would define marriage for the whole country as the union between one man and one woman only.

Federal legislation already exists--the 1996 Defense of Marriage Act--to define marriage as a union between a man and woman, and says that no state is required to recognize the marriage of a same sex couple from another state. But it is unclear that the law will stand a constitutional challenge.

Gay rights advocates say a U.S. Constitutional amendment, likely to open for debate in congressional legislative committees in March, goes well beyond the DOMA and marks a new level of discrimination.

“(The amendment) precludes state courts from interpreting their own laws to recognize marriage between same sex partners,” says Seth Kilbourn, national field director for the Human Rights Campaign, an advocacy group for gay, lesbian, bisexual and transgender Americans.

"There is no such thing as a moderate constitutional amendment," even if it includes provisions for gay civil unions or states rights to determine benefits, says Kilbourn. "Using constitutions to build in discrimination and treat one group of people differently than others, and to tie the hands of future generations, is shameful."

Kilbourn notes that in more than 200 years (since the Bill of Rights), the U.S. Constitution has been amended only 17 times. Only once was it amended to restict the rights of Americans -- in 1920, when the production and commerce in alcoholic beverages was banned. A 1933 amendment repealed the ban.

“That makes amending the Constitution the line in the sand that we all must draw,” says Kilbourn.

There is also a contingent of conservative and liberal opinion that opposes amending the Constitution on the subject of marriage, on the grounds that it tramples states' rights to decide on matters of marriage, and because it is not the sort of issue that should be set in stone when it is clear that public attitudes about non-traditional relationships are shifting.

Is a constitutional amendment too large a club? According to its biggest proponents, it is the only way to prevent a minority of activists from forcing their sensibilities on the American public. They cite polls showing that the majority of Americans see marriage as the exclusive domain of straight couples.

"It is clear that a state-by-state definition of marriage won't work," says Matt Daniels, president of the Alliance for Marriage, which initiated the marriage amendment in 2001, when there was little interest in the subject. It was reintroduced in the House in May 2003, and in the Senate in November 2003.

Court ruling galvanizes opponents
Daniels says activists using a state-by-state strategy have "used proactive courts to do an end run around the will of the American people." He says it was the activists' use of the constitution to press for marriage rights that he says has forced the opposition to turn to a constitutional amendment.

The Massachusetts ruling lent new urgency to the opposition's quest for a federal marriage amendment. This month, a last-ditch effort to nullify those marriages by way of Massachusetts state constitutional amendment, also failed, but the effort is likely to be renewed in March.

The Alliance predicts activists will now begin to use the Massachusetts case as the foundation for constitutional challenges to all of America's marriage laws. "Gays and lesbians have the right to live as they choose," says the Alliance. "But they don't have a right to redefine marriage for our entire society."

How far could the Federal Marriage Amendment go? The founding fathers intentionally made amending the constitution difficult: It requires a two-thirds vote in the House and Senate, and then ratification by three-quarters of the 50 states.

It's a long-shot, but still an idea that has picked up steam. When the Alliance initiated the marriage amendment in 2001, there was scant interest in the subject. Since reintroduction of the amendment in 2003 it has garnered 112 sponsors in the House, and seven in the Senate. Endorsement by President Bush may add momentum in the legislature, though his signature is not required for a constitutional amendment.

For its proponents, the Senate is a major hurdle, but if it were to get beyond that, state ratification could be within range. Daniels points out that there at least 38 states have passed "mini-DOMAs." There are at least 20 states currently considering, or expected to consider, state constitutional amendments to prohibit same-sex couples to marry.

"The best case for us is if that amendment never gets out of Congress for ratification," says Kilbourn, of the Human Rights Campaign.

Political strategy
Even in the likely event that a U.S. constitutional amendment fails, the debate puts many moderate politicians in an awkward spot, and this certainly part of the point for the right wing, say political analysts.

Video: Bush: 'I am troubled' Polls say the majority of Americans are uncomfortable with the idea of same-sex marriages, though just how much it matters to them as voters is unclear. And polls also show that many Americans would, despite discomfort, want to grant benefits to committed same-sex couples.

The issue could be problematic for Democrats, including Mass. Sen. John Kerry, Democratic frontrunner in the race for president. Kerry says he opposes gay marriage. But he is popular among gay and lesbian communities for opposing the the Federal Marriage Amendment, opposing the DOMA which he called "rank gay bashing" and for favoring civil unions as well as benefits for same-sex couples.

Still, there is a risk that focus on these issues, and on Kerry's stance, could alienate some mainstream voters who are uncomfortable with the idea.

To some extent, Bush has been put on the spot by the flurry of controversy, and has edged to a more conservative position, apparently trying to court right-wing Christian groups who have been skeptical of his commitment to their agenda.

Meanwhile Vice President Dick Cheney, who has an openly lesbian daughter, seemed to favor gay unions back in the 2000 campaign, but has more recently said he would support whatever Bush decides on the matter.

In a move to appease his right-wing constituents, and possibly distract them from the more divisive issue of gay marriage, Bush announced in January that he wanted to spend $1.5 billion to promote marriage among low-income people. But some analysts suggest this was just a warm-up to a campaign that plays on popular ambivalence about homosexual couples.

"I fully expect the Bush 2004 presidential campaign to build on his marriage proposal in order to use same-sex marriage as a wedge issue in an attempt to scare swing voters away from the Democratic party nominee," says Craig Rimmerman, political science professor at Hobart and William Smith Colleges. "It will be interesting to see how the Democrats respond, especially given their own reticence in supporting same-sex marriage."

With legislation concerning marriage and civil unions for same sex couples across the country, many candidates will have to weigh their views and the associated political risks.

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