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Gay and lesbian Americans come under White House attack

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Pres. George W. Bush declared his support on February 24 for an amendment to the Constitution banning marriage for same-sex couples.

Bush’s five-minute address to reporters in the Roosevelt Room of the White House resolved a series of ambiguous remarks he previously made regarding same-sex marriage, beginning with comments in the Rose Garden last summer after the Supreme Court ruling in June that overturned the nation’s sodomy statutes.

The president’s announcement also came a day after blistering remarks he made about Sen. John Kerry, the Democratic presidential front-runner, regarding the Massachusetts lawmaker’s Senate votes on matters ranging from tax cuts to authorizing the U.S.-led invasion of Iraq.

Kerry opposes same-sex marriage, but supports civil unions, a legal construct that in the rapidly changing national debate has increasingly taken on the stigma of trying unsuccessfully to be a “separate but equal” solution that is unacceptable to gay and lesbian leaders.

Following the president’s remarks, Kerry issued a statement, saying he will oppose in the Senate any amendment that seeks to ban same-sex marriage.

Bush framed his support for an amendment within the context of remarks he made in his State of the Union address, in which he decried last November’s ruling of the Massachusetts Supreme Judicial Court legalizing same-sex marriage as the overreaching of “activist judges.” Bush also mentioned the steady stream of same-sex marriage licenses issued in recent weeks in San Francisco and the more recent, but temporary, decision by a county in New Mexico to issue such certificates.

“And unless action is taken, we can expect more arbitrary court decisions, more litigation, more defiance of the law by local officials, all of which adds to uncertainty,” said Bush.

In keeping with his previous public comments, Bush couched the issue in terms of what he sees as an assault on the sanctity of heterosexual marriage, saying that the “union of a man and woman is the most enduring human institution, honoring—honored and encouraged in all cultures and by every religious faith.”

Repeatedly in his announcement, Bush denounced what he termed “activist judges” and “activist courts” which are ruling in favor of same-sex marriages against the will of the people.

National polls indicate that a majority of Americans do not support same-sex marriage, but oppose amending the Constitution to codify such a ban.

Given that ambiguous political context, the president signaled he would not oppose the establishment of civil unions or domestic partnerships for same-sex couples on a state-by-state basis.

Vermont passed a civil unions bill in 2000 and California and New Jersey are two states that have enacted legislation that grants partial recognition to same-sex couples on issues including inheritance, child custody, medical decision-making, and other family-related matters conferred automatically by civil marriage.

The president’s decision to open his re-election campaign with a salvo aimed at same-sex marriage appears clearly designed to stem the slide in his approval rating in public opinion polls, but his charge to the Congress to “promptly pass and to send to the states for ratification an amendment” sets off a political scramble in Washington.

In order for an amendment to become part of the Constitution, it must muster a two-thirds majority in both houses of Congress and be ratified by three-fourths of the Union, or 38 states, within seven years. Once an amendment is enacted, it cannot be undone by judicial intervention, but must be undone by the same amendment process.

Across the nation, 38 states have already passed defense of marriage acts outlawing same-sex marriage following the cue set by the 1996 the Defense of Marriage Act, signed into law by Pres. Bill Clinton, that denied federal recognition of same-sex marriages legalized elsewhere, and empowered states to do likewise.

It is worth noting that Bush’s amendment announcement occurred the day before Ash Wednesday, the start of Lent, a period of asceticism for many Christians, which this year also marks the opening of “The Passion of Christ,” a controversial movie produced and directed by Mel Gibson depicting the final hours leading up to the crucifixion of Jesus. Evangelical Christians and conservative Roman Catholics hail the movie as the most accurate depiction of Jesus’ death, although some Jewish groups have criticized the movie as being anti-Semitic.

Were it not for meetings Bush has recently conducted with conservative religious groups, the timing of his amendment announcement might be considered merely coincidental. During the past several weeks, however, the president has sat down with a number of conservative religious groups, in meetings orchestrated by the administra­tion’s chief political operative, Karl Rove.

Like other conservatives, the religious right has been pushing Bush to respond to the concerted attacks directed at him by the Democratic presidential contenders, as well as to tackle the federal budget deficit, which has ballooned due to the Republican tax cuts, the cost of waging war in Iraq and Afghanistan, and the anemic growth in jobs. Last Wednesday, February 15, William Donohue, president of the New York-based Catholic League, a conservative religious advocacy group, met at the White House with Bush and about a dozen other Roman Catholic conservatives.

In an interview the day of Bush’s amendment announcement, Donohue indicated surprise with the president’s decision. According to Donohue, the president spoke for 50 minutes at the White House meeting, 15 of which he devoted to his foreign policy, the remainder to domestic affairs.

“Bush said that if necessary, he would defend marriage,” said Donohue, who is a staunch opponent of same-sex marriage and said he was disappointed last week when the president voiced only limited support for amending the Constitution. “When the president spoke on Iraq and Afghanistan, he was tough. When he got to marriage, it was as if he couldn’t say the word. His cadence was cautious, unlike with No Child Left Behind, when he was going like a freight train.”

Bush left the February 15 meeting without taking questions from the Catholic group, as he did on February 24 when he ignored the press in the Roosevelt Room.

According to Donohue, at a luncheon following Bush’s speech to the Catholic group, administration aides assured the group that Bush was opposed to the decision by Mayor Gavin Newsom of San Francisco to allow same-sex couples to marry. Aides also indicated Bush was keeping abreast of the ongoing constitutional negotiations in Massachusetts following the most recent high court decision there that same-sex civil marriage was the only suitable remedy. Donohue perceived these comments as an attempt to reassure conservatives wary about the strength of the president’s opposition to same-sex marriage.

Some political experts have estimated that upwards of four million evangelical Christians voters abstained from voting in 2000, allowing the Democrat, Al Gore, to win the popular vote even as the Supreme Court intervened to declare Bush the winner in the Florida recount crucial to his Electoral College majority.

Sen. John Cornyn (R-Texas), a member of the Senate’s judiciary committee, chairs a key subcommittee that will hear testimony on any proposed constitutional amendment. Late last summer, Cornyn convened hearings to explore what steps might be needed to further limit marriage to heterosexuals. Sparsely attended, the hearings appeared more as a political gesture of support for those opposed to same-sex marriage rather than a full-fledged attempt at fashioning a change to the Constitution.

The hearings did not explicitly take up the only amendment then, introduced in the House by Rep. Marilyn Musgrave, a Colorado Republican. Today, the Musgrave amendment, no longer the obscure measure of a little-known lawmaker, is the primary vehicle by which same-sex marriage opponents seek to rewrite the Constitution.

That proposed Federal Marriage Amendment states: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or 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.”

Various other proposals are circulating in the Congress and Bush did not specifically mention support for Musgrave’s proposal this week, signaling only his approval of “the amendment submitted thus far.”

Staff members on the Judiciary Committees in the Senate and House predict that since Bush has placed the issue of same-sex marriage foursquare into election year politics, the Musgrave proposal will undergo revisions.

Don Stewart, a spokesman for Cornyn, said that the senator would leave the option of civil unions up to the states while amending the Constitution to prevent same-sex marriages.

“To the senator, marriage is the gold standard,” said Stewart, who indicated that the Massachusetts court decision has alarmed conservative lawmakers. “It’s already spread to other places besides the Commonweal­th.”

As for the president’s apparent nod to the civil union option––“leaving the state legislatures free to make their own choice in defining legal arrangemen­ts,”––experts disagree as to how that will affect legislative wrangling over further amendment proposals. Some gay advocates have warned that language in Musgrave’s Federal Marriage Amendment that bans “marital status or the legal incidents thereof” could pose a threat to existing civil union and domestic partnership legislation at the state and local levels.

“Nothing is done on the merits, it’s done for politics,” said Rep. Jerrold Nadler, a New York Democrat, who supports same-sex marriage, referring to the way in which former Secretary of the Treasury Paul O’Neil, in a recently published book, characterized the modus operandi of the Bush administration. “Bush wants this amendment battle to drag out. He doesn’t want a quick decision, but rather a wedge issue against the Democrats. Look, 15 years from now gay marriage is going to be accepted and Bush probably knows that.”

Nadler, who is the ranking member of a House judiciary subcommittee with oversight on constitutional amendment proposals, interprets Bush’s support for an amendment, but agnosticism on civil unions, as a tactical maneuver to shore up his conservative base, while not alienating undecided moderate voters who, while uncomfortable with same-sex marriages, are also queasy about gay bashing.

“Bush also knows that people do not like intolerant politicians who run on prejudice,” said Nadler.

Ultimately, regardless of the president’s support, a proposal needs to get through a cumbersome approval process in the Congress. A spokesman for Rep. Jim Sensenbrenner, a Wisconsin Republican who chairs the House Judiciary Committee, said that no hearings on an amendment are scheduled for the near future. He also predicted that any amendment would face defeat were a vote be held today. Sensenbrenner has publicly stated that he does not support amending the Constitution to ban same-sex marriage, and views the federal Defense of Marriage Act as sufficient.

The Judiciary spokesman, who spoke on the condition of anonymity, said that there are not sufficient votes in the House to pass Musgrave’s amendment as it is currently worded.

Cornyn, a former Texas attorney general and state Supreme Court justice, will conduct hearings on March 3. Stewart indicated that the senator predicts that various proposals will eventually come under consideration and that next week’s hearings will focus on the Goodrich v. Massachusetts decision in which that state’s same-sex marriage plaintiffs prevailed.

One key witness will be the Republican attorney general of Nebraska, Jon Bruning. The state has passed a defense of marriage act. Bruning’s office did not return a call seeking comment.

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Updated 5:17 pm, July 20, 2018
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