July 24, 2004 – Despite a victory in the Senate last week, advocates for gay and lesbian rights are still struggling with new stumbling blocks to getting states to recognize same-sex relationships. While the Senate nixed a proposed constitutional amendment banning same-sex marriages, the House of Representatives passed legislation Thursday that would keep federal courts, including the Supreme Court, from ordering states to recognize gay marriages granted elsewhere.
The so-called Marriage Protection Act (H.R. 3313) -- passed just one day before Congress recesses for six weeks -- would prohibit federal courts from overturning sections of the 1996 Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman and allows states to refuse to recognize same-sex marriages performed in other states.
The 233 to 194 vote stuck mainly to party lines, with Republicans in the majority. House Majority Leader Tom DeLay (R-TX) told the New York Times, "The policy before us today would reaffirm the current national consensus on homosexual marriage by leaving to the states and the American people the right to define marriage in this country."
The American Civil Liberties Union (ACLU) opposed the measure, arguing that it was both discriminatory and unconstitutional. "The sole objective of the Marriage Protection Act is to prohibit federal courts from reviewing the Defense of Marriage Act because some supporters of the Marriage Protection Act believe that the federal courts, including the U.S. Supreme Court, will find DOMA to be unconstitutional," wrote the national civil rights group to Congress. "Denying courts the ability to review a law for its constitutionality because of a concern that the law might be unconstitutional does not serve any legitimate purpose of government."
The ACLU also expressed concern that by denying the US Supreme Court its traditional role of providing final authority on lower courtsâ€™ differing interpretations of law, the Act "would potentially allow as many as 50 different interpretations of DOMAâ€™s constitutionality, as each of the 50 state supreme courts would be a final authority on the constitutionality of DOMA," wrote the ACLU.
The White House supports the measure, and, in a policy statement Thursday, called for a renewal of the fight for a constitutional amendment barring same-sex marriages.
Some House Democrats agreed that states should have the right to determine their own stance on same-sex marriages. Most, however, voted against the bill because they deemed it unconstitutional for stripping so much power from the federal courts. Quoted by the Associated Press, Representative Tammy Baldwin (D-WI), said, "We face no less than a sign on the courthouse door: 'You may not defend your constitutional right in this court. You may not seek equal protection here.'"
And as the House voted to increase state power on the issue of same-sex marriage, Arkansas Secretary of Stateâ€™s office certified Thursday that a proposed state constitutional amendment banning same-sex marriage had enough signatures to appear on the November ballot. Although Arkansas already has a law to this effect, the amendment would write it into the stateâ€™s constitution. Georgia, Kentucky, Mississippi, Montana, Oklahoma, Utah, Missouri and Louisiana will be voting on similar items this fall, and petition drives for comparable amendments to appear on the ballot are under way in Oregon, Michigan, Ohio and North Dakota.
Most of the recent related actions in Congress are meant to keep the spate of same-sex marriages in Massachusetts, New York, California and Oregon this spring from spreading and to test the waters for a viable proposal to make same-sex marriage unconstitutional this fall.
All of this is keeping civil liberties groups on their toes. Kevin Cathcart, executive director of Lambda Legal, an organization for lesbians, gay men, bisexuals, transgender people and persons living with HIV, said in the groupâ€™s press release, "The right wing's efforts to rewrite the Constitution failed earlier this month, so now they're trying to undermine our government's system of checks and balances and disenfranchise gay couple who aren't a threat to anyone else."
In a statement responding to the proposed Marriage Protection Act, the National Gay and Lesbian Task Force wrote, "It's no secret that our state and local organizations are at a huge disadvantage in terms of money, resources, and organizational infrastructure. They will now bear the brunt of the right's assault. We know from painful experiences over the last 30 years that fighting anti-LGBT initiatives frequently leaves state and local communities drained, demoralized, and fractured -- and that is a clear objective behind the right's state amendment campaign."
Some people identifying as lesbian, gay, transgender or bisexual are in favor of same-sex marriage and some say the struggle is a misplaced use of resources in the larger movement to gain liberation. Many prefer to push for civil unions or domestic partnerships.
Lisa Duggan, associate professor of American studies and gender and sexual studies at New York University, spoke on a panel at The New School on June 17, in which most of the panelists came out against gay marriage. According to the New York Blade, Duggan considered marriage "an archaic institution that has more to do with property than with romance, kinship or recognition."
American University law professor Nancy Polikoff wrote in an op-ed for the Washington Blade, "Those who support opening up marriage to same-sex couples argue that it would win them two things: respect and dignity equal to that offered heterosexual couples, and equal access to tangible benefits." She added,"Consider, however, that this discrimination is remedied by abolishing marriage as much as it is by extending its reach."
Polikoff argues that "a legal system that gives benefits to married couples but withholds those benefits from other types of relationships that help people flourish and fulfill critical social functions harms many people, both straight and gay." Instead, Polikoff advocates civil unions that confer legal protections and benefits to various types of caring relationships.