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Senate Holds Amendment Hearing

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Sen. Cornyn denounces marriages in San Fran and N.Y.; Kennedy blasts Bush

On March 3, a Senate Judiciary subcommittee responsible for constitutional amendments conducted a hearing in which witnesses from both sides of an increasingly divisive debate testified about changing the Constitution to ban marriage for gays and lesbians.

Republican Sen. John Cornyn of Texas, a staunch opponent of same-sex marriage and chair of the Subcommittee on the Constitution, Civil Rights and Property Rights, is a former attorney general and state Supreme Court justice.

Last September, following the June Supreme Court ruling that struck down the nation’s sodomy laws, Cornyn convened the subcommittee to explore what additional remedies, beyond the 1996 Defense of Marriage Act, were needed to protect traditional marriage.

At the time, the only amendment formally introduced was that of Colorado Rep. Marilyn Musgrave. That amendment has since been introduced in the Senate by Colorado’s Wayne Allard. Both Musgrave and Allard are Republicans.

The September hearing was sparsely attended by Cornyn’s colleagues and received scant media attention.

However, following the political wrangling last month by the Massachusetts legislature over whether to amend that state’s constitution to ban same-sex marriage for same-sex couples in the wake of the landmark high court ruling there in November, as well as the decisions by Mayors Gavin Newsom of San Francisco and Jason West of New Paltz to issue same-sex marriage licenses, conservatives, led by Pres. George W. Bush, are demanding a more aggressive legislative timetable on amending the Constitution.

Both sides agree that Wednesday’s subcommittee hearing was just the beginning of a cumbersome amendment process that requires a two-thirds majority in both houses of Congress as well as ratification by three-fourths of the states’ legislatures within seven years.

The subcommittee’s Republican majority invited four amendment proponents to testify and centered the hearing on how the November ruling from Massachuse­tts’ high court, in which a 4-3 majority ordered state lawmakers to legalize same-sex marriage, undermines what they termed the “sanctity of marriage.”

Democrats were allowed to summon three amendment opponents.

In his opening statement, Cornyn stated that the “Massachuse­tts judges declared traditional marriage a ‘stain’ on our laws that must be ‘eradicated.’ Since then, Americans have witnessed startling and lawless developments nationwide—from Boston to San Francisco, and numerous points between.”

As have other opponents of same sex-marriage, Cornyn depicted the Massachusetts ruling as the result of “activist” judges, whoare ruling at variance with the majority will of the people. Cornyn said that the Goodridge court majority “even suggested abolishing marriage outright, stating that ‘if the Legislature were to jettison the term marriage altogether, [that] might well be rational and permissible.’”

Cornyn traced the national debate over same-sex marriage to the 5-4 ruling last June in the Lawrence v. Texas case by the Rehnquist Court overturning the nation’s remaining sodomy laws.

‘Why is an amendment necessary?” Cornyn asked rhetorically, adding, “Two words: activist judges.”

At another juncture, he referred to Gavin Newsom as a “lawless mayor.”

Cornyn warned that the sodomy ruling might be used “to threaten laws across the country—including the federal Defense of Marriage Act.”

The Democrats on the subcommittee are opposed to amending the Constitution, but have seemed on the defensive since Bush last month elevated the marriage issue to an election year centerpiece. In his remarks, Sen. Russell Feingold of Wisconsin, the ranking Democrat on the subcommittee, offered insight into what may emerge as his party’s strategy to undermine support for an amendment. Feingold flatly stated, “I object to the use of the constitutional amendment process for political purposes.”

Feingold also attacked the Republican rhetoric about activist judges.

“If the Goodridge decision, which was based on the Massachusetts state constituti­on,” said Feingold, “is really a case of judges imposing their will on the people of Massachusetts, then the people of Massachusetts, through their elected representatives, will surely overrule the court and amend their constituti­on.”

Feingold also noted the scapegoating nature of the amendment effort, arguing that it would “write discrimination into the governing document of our nation.” Fellow Democrat Edward Kennedy of Massachusetts issued a stinging rebuke to an amendment effort he said invoked anti-gay bigotry, stating that the amendment is “an attempt to salvage a faltering election attempt” and that Bush advocates writing bias into the constitution.

Two of the Republican witnesses are clergy members who picked up on Cornyn’s theme of the importance of rearing children in heterosexual households. Rev. Richard Richardson is director of political affairs for The Black Ministerial Alliance of Greater Boston. Pastor Daniel de Leon, Sr. represents one of the nation’s largest Hispanic Evangelical organizations, Alianza de Ministerios Evangélicos Nacionales (AMEN) and has a syndicated radio show. Richardson spoke of his community-based experience in ministering to congregants from broken homes, arguing that many young men he counsels cannot fill the “void left by the absence of their fathers.”

Sen. John Kyl of Arizona, a Republican, asked Richardson whether young boys need fathers who are positive role models. Richardson said yes, adding, “Men raising young girls can’t be a mother to that child.”

De Leon said marriage is intrinsic to civic cohesiveness, beyond its religious importance.

“Marriage is just not a religious institution,” he testified. “It is a secular institution with long-standing roots in the Hispanic community. In my community, they go to the courts to get married before they go to the church, that is how important it is for them to get legal recognition.”

A third Republican witness, Maggie Gallagher, is president of the Institute for Marriage and Public Policy, a conservative social policy group.

In an exchange with Gallagher, Cornyn said, “If Massachusetts passes it then it receives states’ recognition, like in Texas, and it’s not as if we can erect a wall so that it won’t spread.”

Gallagher responded that, “Marriage is a critical social institution that we rely on to produce the next generation,” and asserted that preserving its definition as a union of one man and one woman is as intrinsic to the social order as maintaining the definitions of “private property or corporatio­ns.”

In a follow up interview, Gallagher said that she does not oppose the establishment of civil unions for same-sex couples, but reiterated his opposition to marriage for gays and lesbians since they “cannot procreate.” Gallagher added, “Marriage is not a benefit delivery package.”

A fourth amendment proponent, Nebraska attorney general Jon Bruning, spoke of the decision in his state to pass a defense of marriage act that prohibits same-sex marriage and how decisions such as Goodridge threaten the sovereignty of other states.

The three amendment opponents offered a variety of reasons against amending the Constitution, including the libertarian view of Chuck Muth, president of Citizen Outreach. In a follow up interview, Muth, who described himself as a “Goldwater conservati­ve,” said that “we’ve lost our way here. I can see where some people might view Goodridge as judicial activism,” but said he absolutely opposes an amendment and considers the issue of same-sex marriage a matter to be left to the states.

The other Democratic witnesses, Prof. Lea Brilmayer, a Yale Law School professor, and Hilary Shelton , the NAACP’s Washington, D.C. director, also said that states should decide the matter, not federal lawmakers.

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Updated 5:17 pm, July 20, 2018
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