Don’t inject discrimination
into U.S. Constitution


President Bush announced his support for a constitutional amendment that would bar same-sex marriages.

PRESIDENT Bush says his support of a constitutional amendment banning gay and lesbian marriages embodies government responsibilities to "respect every person and protect the institution of marriage," but he is not persuasive. The president and other opponents of same-sex marriages have yet to explain exactly how the institution of marriage would be protected by changing the Constitution to codify discrimination against homosexual couples.

"The union of a man and woman is the most enduring human institution, honored and encouraged in all cultures and by every religious faith," Bush says. He is correct, and that institution will continue to endure, whether or not homosexual couples are allowed to claim similar recognition by the government.

Bush says the Constitution needs changing as a response to "some activist judges and local officials" in Massachusetts, California and New Mexico. The U.S. Supreme Court ruled in 1996 that homosexuals comprise a class of people who deserve protection against discrimination. It is not an "activist" leap to regard the issue of gay marriage as parallel to those in the high court's decision 30 years earlier that struck down laws against interracial marriages as being discriminatory.

Hawaii's Supreme Court ruled in 1993 that those issues were indeed parallel, requiring the state to provide a compelling reason why gay marriages should be forbidden. As Justice Steven Levinson explained in that decision, "Like it or not ... customs change with an evolving social order."

The state Legislature voted to outlaw homosexual marriages in its next session, but a state judge ruled that a state constitutional amendment would be required to enforce such a prohibition. The issue was placed on the ballot in 1998, and nearly 70 percent of voters favored permitting the ban.

Meanwhile, legislatures in 37 other states enacted laws forbidding recognition of gay marriages they thought might occur in Hawaii. Congress enacted and then-President Clinton signed into law the Defense of Marriage Act, which asserted that states had the authority to do so.

Since Hawaii did not sanction gay marriages, none of those statutes has been tested in court. They may violate the U.S. constitutional requirement that states give "full faith and credit" to other states' public acts, records or judicial proceedings.

The question reemerged when the Massachusetts Supreme Judicial Court ruled in November that gays could not be denied the right to marry. The court's decision is scheduled to take effect in May, too soon for a state constitutional amendment to block it.

Bush says a federal constitutional amendment is needed to prevent "uncertainty" about whether homosexual couples will gain acceptance of marriage anywhere in America, based on their vows in Massachusetts. His argument that such uncertainty threatens the institution of marriage is not compelling.



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