Christine Hall, CNSNews.com
Friday, September 5, 2003

Amending the U.S. Constitution is the most effective plan, some believe. Senate Majority Leader Bill Frist (R-Tenn.) has already said he would support a federal marriage amendment. But that idea is drawing fire from Democrats and homosexual activists and proving controversial even among conservatives and federalists.

"As a conservative, I believe it is unnecessary, it is unwise, it is contrary to the structure of our federal government, it is anti-democratic ... and it is a form of overkill," University of Minnesota legal scholar Dale Carpenter testified Thursday before the Senate Constitution subcommittee.

And former Rep. Bob Barr (R-Ga.), author of the 1996 Defense of Marriage Act (DOMA), also has been critical of a marriage amendment, said Wisconsin Democrat Russ Feingold. Barr has argued that marriage is a matter regulated by the states, not the federal government.

But subcommittee chairman John Cornyn (R-Tex.) and others believe that recent federal and state court decisions have paved the way for judges to undermine or strike down the DOMA, which defines marriage as the union of one man and one woman. It also allows states to choose not to recognize any same-sex marriage sanctioned by another state.

"I believe that the Senate has a duty to ensure that, on an issue as fundamental as marriage, the American people, through their representatives, decide the issue," said Cornyn.

Four out of six witnesses testifying before the committee agreed. Dr. Ray Hammond, a Boston clergyman, and activist Maggie Gallagher stressed the importance of marriage to the well-being of children, communities and society.

"The African-American community in particular has paid a heavy price for the modern epidemic of family disintegration," said Hammond. More than 1 in 3 American children are being raised in a fatherless home, subjecting kids to "the killing fields called urban streets" or a future "that is cloudy at best," Hammond said.

Gallagher argued that traditional marriage as a "child-rearing institution" should trump "adult interests in sexual liberty."

Legal scholars, meanwhile, disagree over whether court decisions such as Lawrence v. Texas (2003), striking down a sodomy law, and Romer v. Evans (1996), striking down a state constitutional amendment, give ammunition to activist judges to rule against the DOMA.

Carpenter argued that the DOMA is not at risk, while Michael P. Farris, conservative activist and president of Patrick Henry College, and Gregory S. Coleman, a partner with the law firm Weil, Gotshal & Manges, foresee successful legal challenges based, perhaps, on the 14th Amendment equal protection and due process clauses.

When the Supreme Court opinion in Lawrence "appear[ed] to equate [constitutionally-protected liberty] with the same-sex relationship," Coleman opined, a future decision could use that to decide "the control and stigma" from a same-sex marriage ban are similarly unconstitutional.

Homosexual activist Keith Bradkowski, a registered nurse from California, brought the issue to a personal level. His partner, Jeff Collman, was an American Airlines flight attendant killed in the September 11 terrorist attacks.

"After his death, I was faced not only with my grief...but with the painful task of proving the authenticity of our relationship over and over again, with no marriage license to prove our relationship existed," Bradkowski said. It was difficult, he said, to get a death certificate and inherit "basic household possessions" and impossible to get spousal Social Security benefits.

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