Sunday, March 14, 2004

To amend or not to amend

Same-sex marriages force debate on altering America's core document

By Ray Cooklis
The Cincinnati Enquirer

The current controversy over same-sex marriage is forcing Americans to confront a question that comes up rarely in our political life - when, why and how to amend the U.S. Constitution.

That question has moved to the front burner because same-sex marriage is a fast-moving issue, with new developments almost daily. On Thursday, for example, just before the California Supreme Court ordered a temporary halt to the issuing of marriage licenses to same-sex couples, a lesbian couple from Cincinnati exchanged vows in San Francisco.

'Marriage is a sacred union between a man and a woman and should be protected in the most effective and immediate way possible. Federal and state laws define and preserve marriage, but if these laws were overruled by the U.S. Supreme Court I would support a constitutional amendment to preserve marriage as a union between a man and a woman.'
-- Sen. George Voinovich, R-Ohio


'As a lead co-sponsor in the U.S. Senate for a federal marriage amendment to the Constitution, I applaud President Bush for supporting such an amendment. In 1996 I voted for the Defense of Marriage Act, which declares that no state must accept another state's definition of marriage. But we know that it will only take one out-of-control, activist court to strike down the law. This is why we need a constitutional amendment.'
-- Sen. Jim Bunning, R-Kentucky


'I oppose same-sex marriage but believe that all other remedies - both state legislative and state constitutional - should be exhausted before changes to the U.S. Constitution are considered. I support the Employment Non-Discrimination Act.'
-- Sen. Evan Bayh, D-Ind.


"I was a co-sponsor of the Defense of Marriage Act in 1996. DOMA defines marriage as between one man and one woman for the purposes of federal law and, very importantly, it says that states like Ohio do not have to recognize another state's definition of marriage. This is key for me because I do not believe that Ohio, or any other state, should be forced to accept the Massachusetts or another state's same-sex marriage law under the so-called full faith and credit clause of the Constitution.

"I agree with President Bush that we must protect the institution of marriage. A constitutional amendment may be the only way to do that because of court challenges to DOMA or because of the growing number of judges and local governments that are recognizing same-sex marriage. However, amending the Constitution is a very serious step that should only be used as a last resort. I will be closely following the congressional hearings on the various constitutional approaches proposed and the need for a new constitutional amendment."
-- Rep. Rob Portman, R-Ohio


"The traditional family is a fundamental tenet of Western civilization, and I believe protecting the sanctity of marriage is a benefit to all of society. On a more practical level, we cannot allow court rulings and the legislative efforts of some states to have the effect of changing law in other states. It seems that we're currently going down that route - a slippery slope that could hamper some states' efforts to enforce its own laws. A constitutional amendment defining marriage as a union between a man and a woman seems to be the best way - and likely the only way - to affirm our core values while preventing states from being forced to accept legislative whims of other states and court rulings that will forever be called into question."
-- Rep. John Boehner, R-Ohio


"I strongly believe that marriage is between a man and a woman. The Defense of Marriage Act, which I voted for in 1996, allows states to decide whether to recognize same-sex marriages from another state. I would vote for a constitutional amendment (depending upon its language) if the United States Supreme Court ruled that one state had to accept the actions of another in regards to same-sex marriages."
-- Sen. Mike DeWine, R-Ohio


"I believe that a marriage should be between a man and a woman. The issue of same-sex marriages has been handled almost entirely as a state matter. Nevertheless, the issue did come to the U.S. Senate in 1996, and I voted in favor of the Defense of Marriage Act, which passed the Senate 85-14 and was signed into law by President Clinton. The law ensured that a state does not have to recognize same-sex marriages sanctioned in another state. I doubt whether a constitutional amendment or legislation beyond the Defense of Marriage Act is required at this time. I am aware that some legislators have discussed additional proposals, and they have been joined by President Bush. I will study very carefully the exact language of each of these measures when they are formally drafted, as well as evolving circumstances, including important judicial rulings in Indiana and in the federal courts."
-- Sen. Richard Lugar, R-Ind.


"I very strongly believe marriage should be between a man and a woman. You're looking at something that's a cornerstone of society, the way we've organized ourselves for thousands of years. If we're going to change it, shouldn't that be done by the voice of the people through their elected representatives? An amendment, in my view, should be a last resort. My opinion is we ought not to just knee-jerk amend the Constitution. It ought to be considered only if no other options are available."
-- Rep. Steve Chabot, R-Ohio

President Bush and others believe an amendment is needed to establish marriage as being "between a man and a woman" and ensure that states are not compelled to recognize same-sex marriages from other states. But many other Americans, including some conservatives, are loath to employ this extreme measure on such an issue, preferring it be left to the states as "laboratories of democracy."

Count Rep. Steve Chabot, a conservative Republican from Cincinnati, among the skeptics. "An amendment, in my view, should be a last resort," Chabot said. "My opinion is we ought not to just knee-jerk amend the Constitution. It ought to be considered only if no other options are available."

While he strongly opposes same-sex marriage, Chabot hasn't taken a position on the proposed amendment, for a good reason: He chairs the House's Subcommittee on the Constitution, which has jurisdiction over such proposals. That means Chabot will be one of the key players deciding if Congress will consider sending a defense of marriage amendment to the states for ratification.

Chabot will hold a series of hearings, starting March 30, on legal aspects of same-sex marriage, featuring "a good cross-section of expert points of view" from constitutional scholars and other witnesses. The hearings could last through June.

"We want to be very careful and deliberate, as we must always be when considering constitutional changes," Chabot said.

Amending the Constitution is not something to take lightly.

Since the first 10 amendments that make up the Bill of Rights were adopted in 1791, only 17 amendments have been added - an average of one every 12 1/2 years. And one of those, the 27th Amendment regarding congressional pay raises, was among the founders' original proposals, rediscovered and ratified after two centuries in limbo.

In recent years, the only other amendment to get serious consideration has been one to ban flag desecration. Proposed several times, it has lost narrowly in the Senate each time, and so has not been sent to the states for ratification.

The central question in the flag-burning debate also applies to the same-sex marriage debate: Is an amendment necessary or even desirable?

In 1996, President Clinton signed into law the federal Defense of Marriage Act (DOMA), which stipulated that states do not have to recognize same-sex marriages from other states.

So far, 39 states have enacted their own versions of DOMA as well. Gov. Bob Taft signed Ohio's law earlier this year; in Kentucky, the state Senate on Thursday approved an amendment to ban same-sex marriages and ignore civil unions.

Many states see these laws as pre-emptive strikes against challenges that will come when same-sex couples are married in one state, move or return to another state, then seek legal recognition and benefits.

Those who advocate such recognition point to Article IV of the Constitution, which says a state must give "full faith and credit" to the public acts, records and judicial proceedings of all other states, and that "citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."

Does the federal law prevent such recognition? Supporters of DOMA say yes. In passing DOMA, Congress asserted its right to "prescribe the manner," as the Constitution puts it, in which the "full faith and credit" provision is employed - in other words, to act as a traffic cop for the states. The consensus at the time was that it would pass constitutional muster.

Others are not so sure. "There are disagreements as to whether DOMA itself is sufficient," Chabot said, noting that federal courts may decide, for example, that the Constitution's equal protection or due process provisions trump DOMA, or that Congress cannot restrict "full faith and credit" in such a manner.

"That's what we are exploring in the first hearing," Chabot said. "If we find DOMA is sufficient, we probably won't continue any further."

If they conclude DOMA is vulnerable, however, the subcommittee will proceed with hearings to examine legal threats to traditional marriage, the federal marriage amendment, amendments protecting states' ability to make marriage policy, and federal statutory (non-amendment) solutions.

So far, Chabot favors the last alternative. "We could possibly craft a federal statute that limited federal courts' jurisdiction to act in certain areas (such as marriage)," he said. "Congress has the right under the Constitution to determine the jurisdiction of the courts.

"But a statute would raise a lot of questions, and it could be messier."

Messier, to say the least. Such a statute might trigger the kind of inter-branch confrontation America hasn't seen since Marbury vs. Madison asserted the right of judicial review in 1803.

In Chabot's view, legislators should decide the marriage issue, not by a court system that has some "rogue judges" and a closely divided, "unpredictable" Supreme Court.

"You're looking at something that's a cornerstone of society, the way we've organized ourselves for thousands of years," Chabot said. "If we're going to change it, shouldn't that be done by the voice of the people through their elected representatives?"

Besides, he added, same-sex marriage represents a tremendous change that would affect the federal tax system, fiscal policy, programs such as Social Security and much more - so Congress and the taxpayers it represents should decide.

If Chabot's committee decides an amendment is warranted, its debate will move to what shape the amendment will take - whether it will allow the alternative of "civil unions," for example.

"It's a serious issue. The implications it could have for our future society are pretty significant. It is important we treat it with great care, and that's what I intend to do."


Ray Cooklis is assistant editorial page editor for the Enquirer. Contact him at rcooklis@enquirer.com or phone (513) 768-8525.

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