House rejects gay marriage ban amendment

WASHINGTON - The House on Tuesday rejected a constitutional amendment to ban gay marriage, ending for another year a congressional debate that supporters of the ban hope will still reverberate in this fall's election.

The 236-187 vote for the proposal to define marriage as a union between a man and a woman was 47 short of the two-thirds majority needed to advance a constitutional amendment. It followed six weeks after the Senate also decisively defeated the amendment, a top priority of social conservatives.

But supporters said the vote will make a difference when people got to the polls in November.

"The overwhelming majority of the American people support traditional marriage," said Rep. Marilyn Musgrave (news, bio, voting record), R-Colo., sponsor of the amendment. "And the people have a right to know whether their elected representatives agree with them."

Opponents dismissed the proposal as both discriminatory and legislatively irrelevant because of the Senate vote. The measure is "all for the purpose of pandering to a narrow political base." said Rep. Tammy Baldwin (news, bio, voting record), an openly gay Democrat from Wisconsin. "This hateful and unnecessary amendment is unworthy of our great Constitution."

The marriage amendment is part of the "American values agenda" the House is taking up this week that includes a pledge protection bill and a vote on President Bush's expected veto of a bill promoting embryonic stem cell research. Bush has asked, and social conservatives demanded, that the gay marriage ban be considered in the run-up to the election.

The White House, in a statement Tuesday, urged passage of the measure. "When activist judges insist on redefining the fundamental institution of marriage for their states or potentially for the entire country, the only alternative left to make the people's voice heard is an amendment of the Constitution."

The same-sex marriage debate mirrors that of the 2004 election year, when both the House and Senate fell well short of the two-thirds majority needed to send a constitutional amendment to the states. But the issue, in the form of state referendums, helped bring conservative voters to the polls.

One result has been that, while Congress stayed on the sidelines, state legislatures moved aggressively to define marriage as a union between a man and a woman.

Forty-five states have either state constitutional amendments banning gay marriage or state statutes outlawing same-sex weddings. Even in Massachusetts, the only state that allows gay marriage, the state's high court recently ruled that a proposed constitutional amendment to ban future gay marriages can be placed on the ballot.

"Our momentum in the states is extremely strong and Washington is playing catch-up," said Matt Daniels, president of the Alliance for Marriage.

Daniels, who was involved in drafting the amendment's language, said it was essential that Congress eventually set a national standard. Members of Congress are "the only hope for seeing marriage protected in this country and they should be on record."

But Rep. Barney Frank (news, bio, voting record), an openly gay Democrat from Massachusetts, said the amendment would prevent states such as his own, where thousands of same-sex couples have married over the past 2 1/2 years, from making decisions on what constitutes marriage.

"I do not understand what motivates you," Frank said Monday, addressing Republicans on the Rules Committee. "I don't tell you who to love."

The proposed amendment says that "marriage in the United States shall consist only of the union of a man and a woman. Neither the 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."

One conservative group, the Traditional Values Coalition, said it was a "good thing for traditional marriage" that the measure was unlikely to pass because it wasn't clear enough in ruling out civil unions between gays.

"We have just won several important court decisions in the past few weeks," said the coalition's executive director, Andrea Lafferty, but the amendment's proponents "are still playing 'Let's make a deal' with the liberals and the homosexual lobby."

The Senate took up the measure last month but fell 11 short of the 60 votes needed to advance the legislation to a final vote. The last House vote on the issue, just a month before the 2004 election, was 227-186 in favor of the amendment, 39 short of the two-thirds majority needed to advance a constitutional amendment.

The U.S. Constitution has been amended only 27 times, including the 10 amendments of the Bill of Rights. In addition to two-thirds congressional approval, a proposed amendment must be ratified by three-fourths of the states.

####Frankly, the nation is so overwhelmingly against gay marriage that I just don't see it as an insurmountable threat. I think the states will do it, and I just don't see SCOTUS making it the law of the land--on what legal grounds would they do so?####

I understand your position, but I think you're underestimating the threat. Liberals and conservatives operate under two different sets of rules. When we (conservatives) wish to advance an agenda, we do it at the ballot box. If we want to change the Constitution, we do it via an amendment, such as the proposed Federal Marriage Amendment (FMA). An amendment requires overwhelming support for passage. A minority in a key position can kill a constitutional amendment. For example, if the House had voted to pass the FMA, and if every state legislature in the union had a majority prepared to ratify it, it would still fail if the Senate voted 66-34 for it, because 34 votes would be enough to stop it from getting the required two-thirds.

Liberals, however, operate under a different set of rules. When the idea of seriously pushing for gay "marriage" arose a few years ago, you didn't hear liberals plotting a strategy for amending the constitution to guarantee a "right" to gay "marriage". Instead, they decided to use the courts to force gay "marriage" on the entire country. The idea was to find a flamingly leftist state supreme court, find a vague "equal rights" provision in the state constitution, and have the judges "interpret" that provision as requiring the state to recognize gay "marriage". Then, with gay "marriage" the law in one state, they would ask the U.S. Supreme Court to order the other 49 states to comply, using the Full Faith & Credit clause, or possibly the 14th Amendment's Equal Protection Clause.

Every state constitution has some kind of provision guaranteeing "equal justice under the law" or "equal protection of the laws", or something similar. So does the U.S. Constitution. However, those provisions were adopted many decades ago, or even two centuries ago, and their understood meaning at the time of ratification was very different than what the modern liberal activist courts have held them to mean. It's these provisions that are the main source of liberal judicial activism, because once their original meaning is discarded they can be "interpreted" to mean anything.

You are correct that opposition to gay "marriage" is strong. Gay "marriage" proponents lost in Hawaii when the voters quickly amended their state constitution to limit marriage to one man and one woman, overturning their abusive supreme court's ruling that the state constitution's "equal rights" clause required the state to sanction gay "marriage". Voters in many more states got the hint and most states now have provisions in place to protect natural marriage.

But the gay "marriage" lobby didn't give up. They figured that they made a mistake in picking Hawaii. It indeed had a kooky left-wing state supreme court, but it also had an easy process for amending the state constitution, which allowed the voters to throttle the ruling. So the gay lobby began searching for a state with a kooky state court, where it was hard for the voters to amend the state constitution. Which brings us to Massachusetts.

The idea in Massachusetts was to have the state court force gay "marriage" on the state, using, believe it or not, a provision of the state constitution written by John Adams in 1797. Unlike in Hawaii and many other states, it's difficult and complicated in Massachusetts to amend the state constitution. It requires the concurrence of the state legislature, two sessions in row, meaning the process stretches out for years, and a few members of the legislature in key positions can ruin it by simply calling for adjournment. As of right now, the people of Massachusetts are trying to get a referendum on this issue, while the gay lobby is working to find a way to block the vote.

Eventually, though, gay "marriage" will become institutionalized in one, two, or maybe three states, through machinations of some sort. Once that happens, we'll simply be at the mercy of the U.S. Supreme Court on this issue. Will they use the 14th Amendment to force all the remaining states to sanction gay "marriage"? I don't know how they would rule right now. I'm sure Scalia, Roberts, Thomas, and Alito would rule correctly, but I'm equally certain that Ginzburg, Souter, and Stevens would readily mow down the marriage traditions of all fifty states and order state sanctioned gay "marriage" to be imposed, using (i.e., misusing) the 14th Amendment. Breyer's not a good judge but he does seem to have slightly more common sense than the other three leftists, so he might not go so far as to force gay "marriage" on us. Anthony Kennedy? Who knows. He's all over the map, and he wrote the ridiculous Romer decision which elevated homosexuals to a "protected" constitutional class a few years back.

The court could also pull some sort of phony "compromise" on us, as they did on racial quotas. They ruled that outright quotas aren't constitutional, but that it is constitutional to take race into consideration when deciding who gets into college. All that means is that colleges can't set aside 500 spots for minorities, but they can "take race into consideration" when filling those 500 spots. Of course, in practice it's the same result. So on gay "marriage", the court might rule 5-4 that the Constitution doesn't require state sanctioned gay "marriage", but then rule 5-4 that it does require state sanctioned gay civil unions, which are simply marriages under another name.

Until we amend the Constitution to end this debate, the gay lobby will continue using the courts as a battering ram against us. We might win right now with the current Supreme Court, but what about 15 years from now with new judges appointed by (heaven forbid) a Democrat president? It could happen. We just don't know. And without an FMA, that's a threat that will always hang over us.

You asked on what grounds the court could order states to sanction gay "marriage". That's like asking where Roe vs. Wade came from, or court ordered busing, or the order to remove crosses from public squares. They don't come from anywhere but the judges' ideological imaginations. That's why it's called judicial activism.

Imagine this scenario: Three states have gay "marriage". President Hillary Clinton has replaced retiring judges Scalia and Thomas with two feminist law professors. You turn on the TV news, and there you see John & Joe, a gay "married" couple from Massachusetts who want to move to Texas to accept a lucrative job offer for Joe. Also on TV are Sue & Kate, a gay "married" couple from Vermont who want to move to Florida so that Kate can enroll in a good college program there. But these couples can't move to new states without losing their marital status. They say this violates the Equal Protection Clause of the 14th Amendment. Every media outlet from CNN to Oprah is championing their cause. Any judge writing a ruling in their favor will become a media star, with fluff pieces and cover stories galore. The decision will be rendered by a Supreme Court composed of six leftists, a centrist, and two strict constructionists.

Wanna place any bets?

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.