For Better Or For Worse?

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Though on Tuesday the President did not throw his support behind any particular language, right now there's just one proposed gay-marriage amendment before Congress. Introduced last year by Representative Marilyn Musgrave and Senator Wayne Allard, both Republicans of Colorado, it would define marriage as "the union of a man and a woman." Debate is heating up about whether the wording of their measure would also forbid civil unions, which the President said last week states should be permitted to perform. Because of language in its second sentence saying that neither states nor the Federal Government can be required to confer upon unmarried couples marital status "or the legal incidents thereof," many legal scholars say the amendment would effectively ban such unions. "If you have to guess what something means, it probably doesn't belong in the Constitution," says Evan Wolfson, executive director of the pro--gay-marriage group Freedom to Marry. "This amendment is being sold deceptively to the American people."

Though Bush had been voicing concern for weeks over the Massachusetts court decision, he apparently decided to support an amendment just a day or two before he made his announcement. "He did so reluctantly," says a top aide. "He felt, as others did, that the process was not bringing clarity but becoming more chaotic. The President did not provoke this. He was responding to something."

Many Republicans had been hoping all the same that Bush would sidestep the controversy and allow states to settle the issue in their different ways under the protective umbrella of the Defense of Marriage Act (DOMA), the 1996 federal law that says no state is obliged to recognize same-sex marriages performed by another state. Some conservatives fear that the Supreme Court--or at least some future, more liberal configuration of the court--might overturn that law, especially in light of the challenges that are certain to arise once gays who have wed legally in Massachusetts seek to have other states recognize their marriages.

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.

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.