WASHINGTON (ABP) — A Senate panel held its first official hearing on an updated version of the Federal Marriage Amendment — less than 24 hours after the legislation was introduced. While supporters of the amendment praised changes in its language, opponents said the changes are not sufficient to alter their opposition.
Sen. John Cornyn (R-Texas), chairman of the Senate Judiciary Committee's sub-panel on constitutional matters, convened the hearing March 23. The day before, the amendment's chief Senate sponsor introduced a slightly updated version of the proposal, which he and other supporters said was designed to allay fears that the bill would outlaw state-enacted “civil unions” or “domestic partnership” legislation.
“I view these revisions that were introduced in the Senate yesterday as technical corrections,” said Sen. Wayne Allard (R-Colo.), to the panel.
But Sen. Dick Durbin (D-Ill.) expressed outrage at the hearing's timing. “These are much more than 'technical changes,'” he said. “We are going to amend the Constitution of the United States of America with words that were introduced less than 24 hours ago?”
Durbin — as other Democratic members of Congress and some legal scholars testifying during the hearing — expressed his belief that the changes to the FMA did nothing to protect states' rights to enact marriage-like relationships, such as “civil unions” or domestic partnerships, for same-sex couples. “The language in this amendment is inconsistent with civil unions,” he said “It's inconsistent with domestic partnerships.”
But earlier, Allard said the new language would “make it clear, without any ambiguity, that the states” would be able to enact civil unions.
The amendment's original language defined marriage in the U.S. only as “the union of a man and a woman.” Its second sentence went on to read, “Neither this Constitution, nor the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”
The new proposal announced by Allard and chief House sponsor Rep. Marilyn Musgrave (R-Colo.) dropped the phrase “nor state or federal law” and altered the following phrase to read, “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.”
The dispute over the implications of the ruling centers on the phrases “the legal incidents thereof” and “shall be construed” in the second sentence. Opponents of the ban — backed up by many mainstream legal experts — have said the “legal incidents” phrase could be interpreted to ban civil unions and domestic partnerships nationwide just as it bans marriage for same-sex couples.
But Allard, Musgrave and other bill supporters have said repeatedly that the phrase “shall be construed” simply restricts so-called “activist judges” from reading marriage or domestic partnership rights into federal or state constitutions without explicit authorization from legislatures or voters.
But in testimony to the panel, the first openly gay member of Congress said the sponsors' contentions sounded like “bait-and-switch” tactics to him. Rep. Barney Frank (D-Mass.) told the panel, “Let's be clear about what this amendment does — it denies any state in the country the right” to enact same-sex marriage or its legal incidents by popular vote, by a vote of legislators.
Frank also said proponents of the amendment have often raised the specter of “activist judges” who are “unaccountable” imposing their will on an unwilling populace. However, Frank noted, judges in many states are elected and, therefore, accountable to the state's citizens.
Opponents of the amendment derided it as unnecessary and premature. They cited two main reasons: 1) because most legal scholars agree that just because one state may recognize same-sex marriages, the Constitution would not force other states to, and 2) no federal court has yet imposed same-sex marriage nationwide on other constitutional grounds.
But Cornyn and other speakers said the amendment was necessary because recent Supreme Court decisions suggest a majority of justices will eventually rule that limiting marriage to heterosexual couples violates the Constitution's equal-protection provisions.
“Either you believe that traditional marriage is about discrimination and therefore must be invalidated by the courts, or you believe traditional marriage is about children and must be protected by the Constitution,” Cornyn said. Noting that lawsuits challenging state marriage laws have been filed in federal courts in dozens of states, he added, “Now that the threat is a federal threat, a federal constitutional amendment is the only way to preserve traditional marriage laws nationwide.”
Proponents of the amendment have attempted to rally support among African-Americans for their cause, particularly with black religious leaders who have said they resent the claims of pro-gay-marriage activists that limiting marriage to heterosexuals is discriminatory.
Dick Richardson, an African Methodist Episcopal Church minister and charity administrator from Boston, said he took umbrage at such analogies. “As an African-American, I know something about discrimination,” Richardson — who has testified at previous hearings on the subject — told the panel. “The traditional institution of marriage is not about discrimination, and I find it offensive to call it that.”
But what was perhaps the day's most powerful testimony came from Rep. John Lewis (D-Ga.), an African-American Baptist minister and veteran of the Civil Rights Movement's most famous battles. Asked about blacks who object to same-sex marriage, Lewis said, “Discrimination is discrimination.” He predicted that 30 or 50 years from now, “We'll look back over this debate and say, 'What was this all about?' the same way we look back” at the debates over segregation in the 1950s.
Observing that May marks the 50th anniversary of the Supreme Court's landmark Brown vs. Board of Education ruling outlawing racial segregation in public schools, Lewis asked the panel, “Where would we be as a nation if Congress in 1954 radically amended our Constitution to uphold segregation or the separate-but-equal doctrine?” He also made reference to the court's 1967 ruling in Loving vs. Virginia, which invalidated state laws banning interracial marriage.
Referencing his long civil-rights career, Lewis said, “For one, I have fought too hard and too long against discrimination based on race and color not to stand up against discrimination based on sexual orientation.”
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