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GAY AND LESBIAN FAMILIES

Defending the Constitution

Some on the far right are working to write discrimination into our nation's sacred Constitution. The anti-family federal marriage amendment would turn back the clock on gay and lesbian civil rights by denying not only civil marriage, but also civil unions and possibly even domestic partnerships. There are many reasons this amendment is unnecessary.

1. There is already a federal law that defines marriage between a man and a woman. The 1996 Defense of Marriage Act (DOMA) defines marriage as existing only between one man and one woman. Plus, it says states do not have to recognize the marriages of any other state that defines marriage differently. A Constitutional amendment merely replicates this law. DOMA remains the law of our land. It is not being challenged anywhere in court. Amending the Constitution based on fears of a ruling that might be made by some unknown judge in some unknown case at some unknown time is a radical solution in search of a problem.

2. Supporters of the anti-family Constitutional amendment say that if civil marriage for gay couples happens in one state, it will happen everywhere because of the Constitution's Full Faith and Credit Clause. However, legal experts and past Supreme Court rulings show that this argument is not true. The Full Faith and Credit Clause does not apply to this issue. The U.S. Supreme Court ruled in Sun Oil Company vs. Wortman (1988) that the Full Faith and Credit Clause does not compel "a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate."

Constitutional Law expert Bruce Fein wrote in the Washington Times (9/9/03) that, "Under the Full Faith and Credit Clause, as interpreted by the Supreme Court in Sun Oil Company vs. Wortman (1988) and Pacific Employers Ins. Co. vs. Industrial Accident Commission (1939), no state would be compelled to recognize same-sex marriages authorized by a sister state."

The Supreme Court also declared, in Penoyer vs. Neff (1878) "The State...has an absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it can be dissolved."

3. More than 40 states already have laws dealing with this issue. Let them continue doing so in the future based on the will of their citizens and their state Constitutions. The United States Constitution is no place for forcing uniform social polices on states. An anti-family Constitutional amendment undermines the principles of federalism and limits the rights of states.

4. This would mark the first time a Constitutional amendment has been used to discriminate against a part of the American family. In our nation's history, amendments have expanded the reach of freedom to include new segments of our society. Whether it's abolishing slavery, giving citizenship to freed slaves, allowing women and young people to vote, or limiting the scope of government, amendments most often have been used to spread the benefits of liberty to a larger segment of the population. This proposal would be the first time a constitutional amendment has targeted a segment of the American family for discrimination and inequality.

It has been amended only 17 times in our nation's history. Amendments have almost always been used to expand rights‹to women and African Americans for example. Fully seven of those 17 amendments expand the franchise - the right to vote (amendments 14, 15, 17, 19, 23, 24 and 26). This would be the first time the Constitution has been used as a tool to discriminate against some American citizens. The U.S. Constitution ensures equal treatment for ALL Americans. This amendment would destroy that equality by rewriting the Constitution to treat one group of Americans different from others.

James Madison wrote in Federalist 49 that the Constitution should be amended only on, "great and extraordinary occasions." And today, America's leading constitutional and legal scholars caution against amendments like this one, saying that "[t]he Constitution's unifying force would be destroyed if it came to be seen as embodying the views of any temporarily dominant group. It would be a cardinal mistake to amend the Constitution so as to effectively "read out" of our foundational charter any segment of our society." - From "Great and Extraordinary Occasions: Developing Guidelines for Constitutional Change," a publication of Citizens for the Constitution.

5. The recognition and protection of gay families is an issue best handled by the states. This issue should be left for each state to decide. In the Vice-Presidential debate during the 2000 campaign, here's how Dick Cheney responded to a question about recognizing gay and lesbian relationships:

"That matter is regulated by the states. I think different states are likely to come to different conclusions and that's appropriate. I don't think there should necessarily be a federal policy in this area.... I think we ought to do everything e can to tolerate and accommodate whatever kind of relationships people want to enter into.... We live in a free society and freedom means freedom for everybody."

6. The constitution should not be used as a means of deciding important debates about public policy issues. Public opinion frequently changes. The constitution should not be used as a way to gauge public opinion trends on contentious issues. Should we alter the Constitution every time public opinion changes? Case in point: prohibition. A Constitutional amendment was wrongly used to settle a public policy dispute. It did not work 80 years ago. And it will not work with the issue of gay marriage. Such initiatives merely diminish the value and importance of a Constitutional amendment.