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Sen. John Cornyn, R-Texas, called the possible voiding of the Defense of Marriage Act "a real and present risk.”
By Tom Curry National affairs writer
msnbc.com
updated 3/3/2004 3:10:39 PM ET 2004-03-03T20:10:39

In a testy three-hour Senate hearing Wednesday, proponents and critics of a proposed constitutional amendment to define marriage in the United States as being only between one man and one woman clashed over whether such a measure was needed.

They also quarelled over whether the Supreme Court would eventually declare there is a constitutional right for same-sex couples to marry and over President Bush’s motives in supporting such a constitutional amendment.

Democrats on the Senate Judiciary Committee’s subcommittee on the Constitution, Civil Rights and Property Rights denounced the proposed amendment.

Sen. Edward Kennedy, D-Mass., accused Bush of trying to distract the nation from the war in Iraq, unemployment, federal budget deficits, and other issues.

In his written statement Kennedy said, “In a desperate tactic to divide Americans in an attempt to salvage his faltering re-election campaign, President Bush will go down in history as the first president to try to write bias back into the Constitution.”

Sen. Russ Feingold, D–Wisc., called the proposed measure “unnecessary, divisive and utterly inconsistent with our constitutional traditions.” He called the possible extension of legal same-sex marriage across the United States through judicial rulings “a remote, hypothetical issue.”

And Sen. Dick Durbin, D-Ill., wryly said, “There is one law we should adopt: a law banning the adoption of a constitutional amendment during an election year.”

On May 17, same-sex marriage licenses are expected to start being issued in Massachusetts. That state’s Supreme Judicial Court ruled in November that under the state constitution, Massachusetts could not deny the benefits of marriage to same-sex couples.

That ruling, with the majority opinion written by Justice Anthony Kennedy and supported by four other justices, said that “persons in a homosexual relationship may seek autonomy” for the purposes of marriage and child-rearing “just as heterosexual persons do.”

Some gay rights activists, as well as some opponents of same-sex marriage, see Kennedy’s statement in the Lawrence case as strongly implying a fundamental constitutional right for same-sex couples to marry, although that question has not yet reached the high court.

In 1996 Congress enacted the Defense of Marriage Act (DOMA) that says no state is required to accept another state’s marriages between same-sex couples.

But subcommittee chairman Sen. John Cornyn, R-Texas, said, “It’s just a matter of time before DOMA is struck down. It is not a hypothetical risk, as it might have been last summer. It is a real and present risk.”

If the courts do rule DOMA unconstitutional and find that same-sex couples have a right to marry under the U.S. Constitution, then such marriages would be legal throughout the United States.

One hundred years of precedents
One witness at Wednesday’s hearing, Yale Law School Professor Lea Brilmayer, an expert on the conflict between laws of different states, testified that she did not think the Supreme Court would invalidate DOMA.

Brilmayer also pointed to more than 100 years of legal precedents from state courts, which show that states sometimes have refused to recognize marriages performed in other states, if those marriages were deemed to violate local public policy.

For example, she cited cases dating back to 1908 in which states refused to recognize out-of-state marriages between cousins, between uncles and nieces, between two women and one man, and even between one man and one woman who had been married within one year of one of them getting a divorce.

In the early 20th century, some states had laws prohibiting a person getting married within 12 months of getting a divorce.

Even some though legal scholars, such as Yale’s  William Eskridge, say the Constitution’s Full Faith and Credit Clause may be the legal basis for requiring states to give some legal recognition to same-sex marriages, Brilmayer disagreed.

“I don’t know of one case in which the second state was told that it had to enforce the marriage from the first state,” she said.

In a somewhat exasperated tone of voice, she told the senators, “This problem is as old as the hills and frankly it’s not much of a problem, because there are solutions and it’s never caused any kind of constitutional crisis. I’m scratching my head asking, what is all the excitement about?”

But under questioning from Cornyn she acknowledged that if the Supreme Court did rule that the liberty to enter into a same-marriage was one of the liberties protected by the Due Process Clause of the 14th Amendment, then state laws banning same-sex marriages would be void.

Attacking or reacting?
For his part, Cornyn portrayed the proposed amendment not as an aggressive attempt to deny rights to same-sex couples, but a defensive reaction to the Massachusetts ruling and to Kennedy’s implied support for same-sex marriage in last June’s Lawrence decision.

“The American people did not start this discussion, nor did members of Congress on either side of the aisle,” Cornyn said. “The only reason we are discussing this issue today is the work of aggressive lawyers, and a handful of activist judges.”

Cornyn cited a statement made by Harvard Law School constitutional law professor Laurence Tribe, that the Lawrence decision renders traditional marriage “constitutionally suspect” and that the future status of marriage is now a “federal constitutional issue.”

In the Senate, Sen. Wayne Allard, R-Colo., has proposed a marriage amendment to the Constitution. In the House, Rep. Marilyn Musgrave, R-Colo., has done likewise.

The proposed measure reads: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor 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.”

Feingold and Kennedy said that second sentence of the proposed amendment could be used to deprive same-sex couples who are unmarried but living in “domestic partnerships” from receiving benefits that some states and local government have provided for them, such as the right to share medical insurance coverage and the right to get family leave benefits from their employer.

Passage of a constitutional amendment requires a two-thirds vote of the House and Senate and ratification by the legislatures of 38 states. (By coincidence, 38 is the number of states that have already enacted their own "state DOMA" laws or constitutional provisions to give them the legal basis for refusing to recognize marriages between gay couples.)

Cornyn told MSNBC.com Monday, “The (constitutional) amendment may not happen this year, it could happen next year, but clearly we are on a path to DOMA being held unconstitutional,” which he thinks will add urgency to the movement for a constitutional amendment.

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