For Better Or For Worse?

Sunday, Feb. 29, 2004 By RICHARD LACAYO
BRIDAL POWER: These women, like hundreds of other same-sex couples, took the mayor of San Francisco up on his offer to let them wed
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Legal scholars are divided over whether DOMA is vulnerable. It is conceivable that the Justices could rule that the law violates the Constitution's full faith and credit clause, which generally requires states to recognize one another's laws and state court judgments. But states have long been allowed to refuse to recognize other states' marriages that violate their own social policies. For instance, for a time some Southern states refused to accept interracial marriages performed elsewhere.

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The Senate Judiciary Committee will hold its first hearing on the amendment idea this week. And after that? Well, after that, no amendment. It has almost no chance of being passed by Congress this year. Republican leaders admit in private that they don't have anything like the two-thirds vote needed in either chamber to send it along to the states. The Bush announcement took them almost completely by surprise. G.O.P congressional sources tell TIME that House Speaker Dennis Hastert first heard about it when the White House phoned his office just 15 minutes before the President appeared on TV. Hastert, who opposes gay marriage but suspects that the fight over a constitutional ban could be a quagmire for Republicans, refused afterward to speak publicly to reporters.

Hastert's silence was better than the explicitly cool reception that Bush's announcement got from other leading Republicans on Capitol Hill. Senate majority leader Bill Frist was highly skeptical of its chances for passage. So was House majority leader Tom DeLay. David Dreier, the powerful chairman of the House Rules Committee, flatly opposes amending the Constitution, arguing that the question of gay marriage instead "should go through the courts."

States that do not want gay marriage have pursued their own routes to block it. Thirty-nine have passed laws making clear they would not recognize gay marriages or civil unions from other states. At least 12 are debating laws to ban same-sex marriages, strengthen existing bans or bar same-sex couples from receiving marriage benefits. Hawaii, Alaska, Nebraska and Nevada have gone even further, amending their constitutions to ban same-sex marriages, and 21 other other states are thinking of doing the same.

Marriage is important to gays for the same reason it's important to straights — not only for romantic reasons but also because a marriage license opens the door to a multitude of federal and state benefits granted to wedded couples, including inheritance rights and Social Security survivor's benefits. That's one reason the consolation prize of civil unions is unsatisfying to gay activists, unless it comes with a document that opens the same doors as a marriage license. "Call it, perhaps, a marriage, family and partnership license," says Elizabeth Birch, a former executive director of the Human Rights Campaign, a gay-rights organization.

To uncouple the two components of marriage, civil and religious — the latter being the basis of much of the reaction against gay marriage — some would prefer to see a legal regime in the U.S. like those of many European nations, where couples marry at city hall in a civil ceremony. They are then free to wed in a house of worship as well, which is equally free not to marry them if it violates the traditions of that faith.

Whether a federal amendment emerges from Congress, debate over the issue ensures that gay marriage will remain an explosive talking point straight through November, and in the meantime will produce some political contortions. Kerry, for instance, is one of only 14 Senators who voted against DOMA, which he described as an instance of "gay bashing on the floor of the United States Senate." Yet on Good Morning America last week Kerry said a federal amendment was unnecessary because DOMA shielded states that did not want to accept gay marriage — which put him in the awkward position of pointing out the usefulness of a law he voted against. Bush's position has been adjustable too. In a 2000 presidential debate he said states "can do what they want" on gay marriage. And Vice President Dick Cheney, whose daughter Mary is openly gay, likewise said in that year's vice presidential debate that the issue of gay marriage should be decided by states, though earlier this year he said he would support the Administration's stand.

Democrats are also deeply suspicious that, as Election Day nears, Republicans might try to force a vote on the amendment bill, even a vote that they know they will lose, as a way to put pressure on congressional Democrats in tight races. A perfect date might be just before the Democratic National Convention, scheduled to start July 26 in gay-friendly Boston. But an amendment vote could hurt Republicans as well. The party's pollsters show that nearly two-thirds of Americans oppose gay marriage in principle, but are evenly split on the wisdom of a constitutional amendment. It tells you something about the local complexities of the gay-marriage issue that Colorado, the home state of both sponsors of the amendment proposal, has a law banning gay marriage but also has three cities — Denver, Aspen and Boulder — where gays can affirm their unions as domestic partners.