Even as President Bush's push for a constitutional ban on gay marriage failed to advance in the Senate on Wednesday, Republicans in the House of Representatives and elsewhere vowed more moves to keep the election-year focus on the future of marriage.
By a 50-48 vote, the Senate decided to shelve a constitutional amendment that would declare that marriage “shall consist only of the union of a man and a woman.” Sixty votes were needed to shut off debate and proceed to vote on the amendment.
Supporters of the amendment said they would seek another vote in the Senate this fall either on the amendment or related legislation to preserve heterosexual marriage.
The proposed constitutional 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.”
Forty-five Republicans were joined by three Democrats, Sen. Robert Byrd of West Virginia, Sen. Ben Nelson of Nebraska and Sen. Zell Miller of Georgia, in supporting the procedural motion that would have allowed the Senate to vote on the constitutional amendment.
Six Republicans joined with 43 Democrats and independent Jim Jeffords of Vermont in voting to shelve the constitutional amendment.
The six Republicans were Ben Nighthorse Campbell of Colorado, Susan Collins of Maine, John McCain of Arizona, John Sununu of New Hampshire, Lincoln Chafee of Rhode Island and Olympia Snowe of Maine.
Moments before the vote, Sen. Patrick Leahy, D-Vt., told his colleagues, “gays and lesbians are looking at us to see whether this body is going to brand them as inferior in American society.”
But Sen. Rick Santorum, R-Pa., said senators who voted against the cloture motion were simply avoiding a difficult issue in the hopes that it would go away.
“We have to question whether there is a desire to protect traditional marriage, whether we’re just sort of laying back, hoping that this issue is taken from us, that the courts will do our dirty work.”
But, Santorum urged senators to not shy away from the issue. “The future of our country hangs in the balance because the future of the American family hangs in the balance,” he declared.
The defeat on the procedural vote was a setback for Senate Republican leaders and for the Bush re-election campaign. They did 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.
Kerry and Edwards did not show up for the vote.
In a written statement released by his campaign, Kerry said, “Had this amendment reached a final vote, I would have voted against it, because I believe that the American people deserve better than this from their leaders.”
Even though their absence made no difference in the outcome, Republicans were critical of Kerry and Edwards for skipping the vote.
“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,” Sen. John Cornyn, R-Texas said Tuesday.
And Sen. George Allen, R-Va. argued that “Sen. Kerry has a bigger explanation to make. When there was an opportunity (to defend traditional marriage) by statute, he was one of a handful that was so extreme and so far out that he did not even want a statute to protect marriage.”
In 1996, Kerry was one of 14 senators to vote against the Defense of Marriage Act, which permits states to refuse to recognize same-sex marriages performed in other states.
At the time, Kerry denounced DOMA as “fundamentally unconstitutional” and “a thinly veiled attempt to score political debating points by scape-goating gay and lesbian Americans.”
In February, Kerry said no state has to recognize a marriage that is against its public policy. Although not explicitly saying whether he now supports or opposes DOMA, Kerry said there are “no votes to take it back” in Congress.
Democrats who spoke during the Senate debate said that DOMA was the legal bulwark that would protect states from being forced to recognize same-sex marriages from Massachusetts, the only state where same-sex marriage is now legal.
“I supported the Defense of Marriage Act, which clarifies that South Dakota has the ability to define marriage and that no one can challenge that," Senate Minority Leader Tom Daschle told reporters Tuesday. "South Dakotans are right in synch with the position that I hold.”
DOMA 'will not be overturned'
“DOMA has not been successfully challenged. … It will not be overturned. I feel very confident about that,” he added.
At least two suits are pending in federal courts to test the constitutionality of DOMA.
Some legal scholars read last summer’s U.S. Supreme Court ruling in Lawrence vs. Texas as creating a basis for declaring same-sex marriage a constitutional right guaranteed by the Due Process Clause of the Fourteenth Amendment, therefore making DOMA unconstitutional.
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.
A foundation for the high court
Lawrence vs. Texas did not explicitly give same-sex marriages constitutional protection, but it laid the foundation for the Supreme Court to do so
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 Lawrence vs. Texas.
Meanwhile, the House Judiciary Committee moved toward approval of a measure that would take from the federal courts, including the Supreme Court, any jurisdiction to hear legal challenges to DOMA.
The full House is expected to vote as early as next week on the legislation.
Conservative activist Gary Bauer, head of an advocacy group called American Values, was in the Senate gallery watching Wednesday’s vote and told reporters afterward, “I think there’ll be another vote in the fall either on the Allard amendment or other approaches to the issue.”
And Bauer predicted, in this fall’s elections “you’re going to see a dozen states pass referenda” to enact constitutional or statutory definitions of marriage as only between a man and a woman.
Noting Kerry’s vote against DOMA, Bauer added, “I look forward to President Bush bringing this up in the debates with Sen. Kerry this fall.”