Senate Democrats on Tuesday were headed toward a tactical victory on the hot-button issue of same-sex marriage.
What seemed likely Monday — an up-or-down Senate vote on a proposed constitutional amendment to define marriage as only "the union of a man and a woman" — appeared very doubtful a day later as Republican and Democratic leaders were unable to agree on a procedure for a vote.
Republican Senate Majority Leader Bill Frist has scheduled a Wednesday vote on cloture, a procedural move that would limit debate on the topic and allow the Senate to proceed to voting on the amendment itself.
It seems nearly certain that Frist will be unable to muster the 60 votes needed to invoke cloture.
Senators in both parties who want to avoid casting an election-year vote on the amendment, one way or the other, will vote against cloture, as will those who are opposed to the marriage amendment.
The turn of events is a setback for Republican leaders. They will not have their chance to get Democratic presidential nominee, Sen. John Kerry, and his running mate, Sen. John Edwards, on the record voting "no" on the marriage amendment.
Since it now appears there will be no vote on the amendment itself, Kerry and Edwards apparently will not show up. But their absence will likely make no difference in the outcome.
Nevertheless, Sen. John Cornyn, R-Texas, a leading proponent of the amendment, argued that the vote on cloture would be significant in itself.
“I think the American people will understand that a ‘no’ vote on cloture is a ‘no’ vote against traditional marriage and they will understand that a ‘yes’ vote on cloture is a vote in favor of traditional marriage," Cornyn told reporters.
“If a senator does not care enough to show up for the vote, I think that sends a bad message, particularly on something as profoundly important to our society as traditional marriage.”
Definition of marriage
The proposed amendment, sponsored by Sen. Wayne Allard, R-Colo., declares, “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, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.”
On Monday, some Republicans prepared an alternative that would include only the first sentence of Allard's amendment, dropping the second. This alternative would seem to open the way to states permitting and authorizing civil unions which would provide many of the benefits of marriage.
But Frist and Senate Minority Leader Sen. Tom Daschle were unable to strike a deal on how to permit a vote both on the Allard amendment and on the alternative version.
Daschle's gloating
Daschle took the failure to agree as a chance to do some gloating at Frist’s expense.
“The Republicans find themselves in an embarrassing position," he told reporters. "They cannot agree among themselves as to what form the marriage amendment ought to take. They have left themselves with the legislative equivalent of multiple choice.”
Democrats had “little recourse,” he said, but to oppose the motion to proceed to an up-or-down vote.
Daschle charged that Frist would have allowed an unlimited list of amendments to be tacked on to the Allard amendment on unrelated topics such as crime victims’ rights, “making the Senate a constitutional convention.”
Frist, of course, cast the dispute in a different light, telling reporters he wanted an up-or-down vote on the Allard amendment, but “we don’t want to just have one vote. The Democrats want to have one vote and then skedaddle. We want to very thoughtfully debate a constitutional amendment… we don’t want to cut off amendments.”
At least two Republican senators, Maine’s Susan Collins and Arizona's John McCain said they would vote "no" on cloture.
And Sen. George Voinovich, R- Ohio, also expressed reluctance: “From a timing point of view it would have been better to do it not in this environment."
Opponents of the Allard amendment say it is unnecessary because the Defense of Marriage Act, signed into law by President Clinton in 1996, lets states refuse to recognize same-sex marriages performed in other states. Kerry voted against DOMA.
Massachusetts is the only state where same-sex marriage is now legal.
Daschle continued to insist Tuesday that there was no need for a constitutional amendment.
“I supported the Defense of Marriage Act (DOMA) which clarifies that South Dakota has the ability to define marriage and that no one can challenge that," he said. "South Dakotans are right in synch with the position that I hold.”
“DOMA has not been successfully challenged… It will not be overturned. I feel very confident about that,” he added.
But Cornyn said, “There is no question in my mind that, at some point in the future, the Defense of Marriage Act will be held unconstitutional by federal courts. The question is when it is going to happen. Waiting until it does happen and then trying to repair the damage by passing a constitutional amendment, puts us in the same bad position Massachusetts finds itself in: the elected representatives want to pass a (state) constitutional amendment but they can’t do it until 2006.”
What brought this drama to a head?
Last November, a four-justice majority of the Massachusetts Supreme Judicial Court declared same-sex marriage legal in that state.
The judges relied partly on last summer’s U.S. Supreme Court ruling in Lawrence vs. Texas, which provides the basis for extending a constitutional right to same-sex marriage to the other 49 states.
Supreme Court and marriage
Justice Anthony Kennedy, writing for the five-justice majority, declared in Lawrence vs. Texas that the Constitution demands respect “for the autonomy of the person” in making choices about marriage, family relationships and child rearing.
“Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do,” Kennedy declared.
Lawrence vs. Texas did not explicitly give same-sex marriages constitutional protection, but it laid the foundation for the Supreme Court to do so.
How long DOMA remains on the books is the crux of this debate.
Some scholars read Lawrence vs. Texas as creating a basis for declaring same-sex marriage a right guaranteed by the Due Process Clause of the Fourteenth Amendment, therefore making DOMA unconstitutional.
At least three suits have been filed in federal courts to seek to overturn DOMA.
Bush in his weekly radio address Saturday said, “An activist court that strikes down traditional marriage would have little problem striking down the Defense of Marriage Act. Overreaching judges could declare that all marriages recognized in Massachusetts or San Francisco (must) be recognized as marriages everywhere else.”
Urging Congress to act, he said, “When judges insist on imposing their arbitrary will on the people, the only alternative left to the people is an amendment to the Constitution — the only law a court cannot overturn.”
One thing seems certain: If same-sex marriage is to be made legal across the nation, it will happen by court rulings and not by legislation. Thirty-eight states have laws or state constitutional provisions that ban marriage between same-sex couples.
The issue is playing a role in Daschle’s fight for a fourth Senate term.
His South Dakota GOP adversary, former Rep. John Thune, began airing the first ad of his campaign Friday, a radio spot in support of the amendment.
"Extremist groups in Washington, politicians, even judges... have made it clear that they are willing to run over any state law defining marriage," Thune says in the ad. "They’ve done it in Massachusetts and they can do it here."
Cara Morris, a spokeswoman for the Democratic Senatorial Campaign Committee, called Thune's ad "bizarre" and asked, "Is this what his polling shows is the most important issue to South Dakota voters?"
Thune campaign manager Dick Wadhams fired back, calling Daschle "out of step" with South Dakota voters and saying he was "terrified" of the marriage issue.