October 28, 2005

Senate panel considers U.S. ban amendment, again

by Eric Resnick

Washington, D.C.--Between confirmation hearings for U.S. Supreme Court nominees, the Senate Judiciary Committee quietly held a hearing last week on a constitutional amendment to ban same-sex marriage.

The hearing on the so-called Marriage Protection Amendment was called by anti-gay Sen. Sam Brownback, a Kansas Republican who appeared in Columbus a week earlier at the kickoff of Rev. Rod Parsley�s Christian political action organization Reformation Ohio.

Brownback, a supporter of the amendment, chairs the Constitution subcommittee, which heard the testimony on October 20.

The same amendment, then called the Federal Marriage Amendment, failed last year in both Senate and House votes timed to help the Bush campaign rev up social conservatives.

The amendment would prohibit states like Massachusetts from allowing gay and lesbian marriages. It also threatens the rights of opposite-sex couples who are not legally married, like Ohio�s constitutional marriage ban.

Amending the Constitution requires a two-thirds vote in both houses of Congress, then ratification by three fourths of the state legislatures.

�We will have to define marriage,� said Brownback. �The only question is who will do the defining, the people or the judges.�

Before the hearing began, the committee�s ranking member, Democrat Patrick Leahy of Vermont, chastised the senators who called the hearing.

Leahy said, �We are now asked to again turn to a divisive measure that will contribute nothing to rebuilding the homes that have been destroyed or saving the lives that are threatened, or jump-starting the economy.�

Then panel then heard testimony from five witnesses, lasting more than an hour.

Opposing the amendment were witnesses Christopher E. Harris, a gay father, pediatrician and professor of pediatrics at Vanderbilt University; and Louis Michael Seidman, a law professor at Georgetown University.

Harris told the senators that the amendment would affect his family deeply.

�Willfully injuring children through the denial of legal rights to their parents serves no purpose,� said Harris. �The value of a loving family cuts across sexual orientation.�

Harris said, �The real world experience of the Commonwealth of Massachusetts shows that protecting families [through marriage] benefits children and their families. A year after recognizing that same-sex couples and their children are real families under the law, the people of the Bay State are continuing to do the same things they always do--bake beans, fish for scrod and root for the Red Sox.�

�In fact,� said Harris, �the people of the Bay State are doing even more; they are protecting all the children of Massachusetts by ensuring that no family is left outside the protection of the law.�

Seidman avoided passing judgement on the issue of marriage at all, saying it was not his area of expertise.

�I will confine my testimony to a subject I do know something about,� said Seidman, �the way in which courts are likely to interpret the amendment and its likely effect on the institution of marriage.�

�Seidman said the amendment �reflects remarkably poor lawyering.�

�If adopted, the amendment will grant unelected federal judges untrammeled discretion that could be checked neither by Congress nor state legislatures regarding domestic relations law,� said Seidman.

He described �interpretive ambiguities� that will arise from the use of both the terms �marriage� and its �legal incidents.�

Seidman said because the amendment does nothing to change the Supreme Court�s Lawrence v. Texas decision which invalidated state sodomy laws, the upshot is a prohibition on long-term gay relationships combined with a fundamental right to casual sex.

�The amendment, in effect, constitutionalizes the one-night stand,� said Seidman. �Is this a sensible way to protect the institution of marriage?�

Testifying in favor of the amendment were Boston College law professor Scott FitzGibbon, Bringham Young University law professor Richard Wilkins and Marquette University political science professor Christopher Wolfe.

FitzGibbon�s testimony was almost entirely based on his fear of same sex couples becoming normalized through marriage.

He referred to a National Public Radio broadcast of an eighth-grade Boston class discussion on same-sex marriage. �The effect of this social movement is to encourage the introduction of vivid and sometimes graphic presentation of various sexual practices.�

�The effect of the Goodridge [Massachusetts marriage] decision has been to encourage the indoctrination of public school students in the merits of legalization of same-sex marriage,� said FitzGibbon.

�The development underscores the concerns of same-sex marriage opponents in the United States who argue legislation would force schools to teach about homosexual behavior as a positive alternative lifestyle for children,� FitzGibbon concluded.

Wilkins talked about Lawrence and its roots in �the ubiquitous modern �right to privacy� � which he does not support.

He also argued that the Supreme Court was wrong in its 1967 Griswold v. Connecticut ruling, which struck down laws against contraceptives.

�The court did not consider whether its new analysis was consistent with the long-standing history and traditions of the American people,� Wilkins said.

Griswold was the first decision in a series of four that shape Americans� right to privacy, the fourth being Lawrence.

In between were the 1972 Eisenstadt v. Baird, which struck a Massachusetts law limiting contraceptives to married couples, and the 1973 Roe v. Wade extending the privacy right to abortion and reproductive health.

�The �correct� answers to such questions as the appropriate level of welfare assistance, the purity of the nation�s air, and the sexual conduct of its citizens are fairly debatable and, therefore, left to resolution by state and national legislatures,� said Wilkins.

In taking that position, Wilkins said the high court was correct to uphold sodomy laws in its 1986 Bowers v. Hardwick decision--which Lawrence overturned--saying that �at long last� the court was �hesitant to lengthen the shadows of Griswold.�

�The Bowers court also noted that homosexual behavior, unlike that in Griswold and Roe, �bears no resemblance� to �family relationships,� �marriage,� or procreation,� testified Wilkins.

Wolfe told the senators, �Homosexual marriage is one more indication from society that marriage is whatever we want it to be: a malleable human institution that we can shape, rather than a natural institution, with its own dynamics and demands, to which we must submit.�

He then said that the goal of marriage stability will not be achieved �if marriage is considered to be a malleable institution, revisable by society, and unfettered by deep natural requirements such as monogamy and gender differentiation--a view that is at the heart of the movement for gay marriage.�

�Only by an amendment that addresses the core issue--the nature of marriage--can we achieve the goal of preserving marriage as a key social institution,� concluded Wolfe.

No further action is scheduled on the amendment, which some say exists only as a fundraising tool for its supporters.

�While some senators are trying to appease their extremist base,� said Human Rights Campaign president Joe Solmonese, �millions of Americans who support equal rights and responsibilities for all families will see through these hearings.�

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