Do as I say, not as I do ...

Do as I say ...

Bill O'Reilly, the Faux News resident loudmouth, got into a heated airtime argument the other night with Michael Rogers, a lawyer who runs a website which outs Washington politicians who vote against gay and lesbian equality while remaining safely closeted.

Bill took the position that outing public figures is "wrong", "not fair" and made him "uneasy", and went on to say "Somebody's personal sex life should have nothing to do with any kind of policy."

... not as I do ...

Not two minutes later, though, according to the Chicago Tribune, Bill referred to "the lesbian judge on the lesbian on the Supreme Court who dissented", an obvious reference to Massachusetts Supreme Judicial Court Justice Martha Sosman, who is the only woman on the court who dissented from the court's ruling mandating same-sex marriage in Massachusetts.

It wasn't an oversight, according to the Tribune. O'Reilly smirked the remark last November and last week, as well. For the record, Justice Sosman denies that she is a lesbian.

Uh, Bill?

I don't know if Bill has any kids.

But if Bill does have kids, I hope he'll let the father of four give him some advice: "Do as a I say, not as I do ..." just doesn't cut it.

Roots

Governor Mitt Romney, renewing his support for a ballot amendment banning gay marriage, opined Wednesday that the majority of voters - not the courts or lawmakers - should define what constitutes a civil right: "Who's going to tell us what a civil right is and what's not? Well, the people will." Romney went on to say that in a democracy, nothing is off-limits to voters, even the definition of civil rights.

I'll bet Lester Maddox and Strom Thurmond are justly proud, wherever they are ... the seeds the sowed during the Southern Strategy have taken root and are thriving in the Governor's mansion in Massachusetts.

Who would have guessed?

Queenie Quote of the Day

"If the battle to protect marriage takes even five more years, liberal judges and activists will have destroyed this 5,000-year-old institution, which was designed by the Creator, Himself. Even now, they are close to achieving that coveted objective." -- James Dobson, CNN Commentary, June 28, 2006

Are we talking paranoia or hysteria, do you suppose?

Voting Yes is Just Wrong

I live in Sauk County, a rural area far away from the world of Atlanta, Chicago, New York and San Francisco. The closest we come to a "gay neighborhood" is a rainbow windsock in somebody's yard.

To be gay or lesbian in Sauk County is to live with and confront the daily reality of the fierce antipathy to gays and lesbians harbored by some straights. We don't read about it in the newspaper -- we get to listen to it with our own ears.

That reality makes a number of letters that have been appearing in our local newspapers more remarkable than they might seem at first glance. The letters are from local gays and lesbians writing about Wisconsin's proposed amendment banning same-sex marriage, civil unions and domestic partnerships.

The Baraboo News-Republic published a letter last Friday that puts the issue as clearly and concisely as I've ever seen it done. The letter is from a woman who is in a committed relationship, with children.

Here are excerpts:

"... Until now, I tried very hard to tell myself my involvement would not make a difference. I have been invited to several events planned to educate voters about the issue. I have attended none of them. A friend said to me, "You need to get involved. This directly affects you." True. I hid behind whatever excuse that was convenient, like "my three teenagers have so much going on" or "I am so busy with my job." However, when I sat down and took a hard look at it, my apathy came from a different source. ...

"My biggest reason for staying out of the battle: How do I convince someone that voting against this amendment is in their best interest? I know that for me, if the amendment passes, it would be devastating. How do I convince you?

"The answer came from my daughter, a 17 year old, who is evidently wise beyond her years ... Hers was a simple answer. People should vote not because voting yes is just wrong.

"The truth is that some things in life we have to take battle with because it is just wrong. It is wrong for me not to be allowed to have the love of my life at my side when I die following out my wishes. It is wrong for anyone to tell me that I can't have a home and a family. It is wrong for anyone to tell me that my commitment to another person is somehow less than anyone else's. It is wrong! ...

"The last time I checked, our constitution was devised to keep the doors of freedom open for people, not slam them shut. I don't care if you slam the door to your home in my face. Thank goodness, under the constitution you have that right. I don't care if you slam the door of your church in my face, I will seek God in a move loving and accepting environment. You do not, however, have the right to take away my constitutional rights.

"Please keep in mind, when deciding how you will vote in November, that life, liberty and the pursuit of happiness are not special rights but those handed down to all of us."

Jesse Helms is alive and well ...

Recent polls suggest that American's antipathy to same-sex marriage is fading, continuing a historic trend toward acceptance of the idea that gays and lesbians should enjoy the same rights and responsibilities of citizenship as straights.

Not that this has made much impression on President Bush or the Republican leadership, nationally or in Wisconsin.

Why?

The answer lies in the cold political calculus of this fall's midterm elections.

The Republican Party is in deep trouble, and everyone knows it. The President's approval rating has plummeted to historic lows, but the drop has been particularly acute among "the base" -- conservative, white, Christians. Among that subgroup of the electorate, the President's approval ratings have dropped 22%, and the Republicans know that without "the base", the party cannot and will not prevail in close contests.

So it is no surprise that the Republicans trotted out the "Protect Marriage Amendment" in the Senate earlier this month, and that the President went on the hustings, endorsing an amendment that had no chance of passing in order to shore up his flagging support among evangelicals.

The President may have said "You are here because you strongly support a constitutional amendment that defines marriage as a union of a man and a woman, and I am proud to stand with you.", but what he meant was "You are here because I need your votes to win in the midterm elections, and I'll say and do anything to appease you."

Lest there be any doubt about the President's cynicism, Newsweek reported that a friend of the family said that the President's latest version of "Mission Accomplished" was "purely political. I don't think he gives a shit about it."

And that's no surprise, either. I suspect that there are a few Republican politicians who do give a shit about it, but most don't. Even Rick Santorum cheerfully volunteers that his gay communications director is "a trusted friend confidente [sic] to me and my family ..." while spouting the ugly anti-gay rhetoric of social conservatism.

All of this is transparent, and all of this is part of a historic pattern among Republicans. In fact, the last time the country fought a battle over "traditional marriage" -- racists attempting to uphold state bans on interracial marriage during the civil rights era -- the political landscape was strikingly similar to the political landscape today.

At that time, sixteen states had laws on the books outlawing interracial marriage and 70& of Americans opposed interracial marriage.

As the President unwittingly observed, it is deja vu, all over again: "Nineteen states have held referendums to amend their state constitutions to protect the traditional definition of marriage, In every case, the amendments were approved by decisive majorities, with an average of seventy-one percent."

Sound familiar? If you are old enough, it will.

And here's something else that will sound familiar if you are old enough to remember the civil rights era: "Unfortunately, this consensus is being undermined by activist judges and local officials who have made an aggressive attempt to redefine marriage."

Been there and done that. The President ought to be ashamed of himself, assuming that he has the capacity to be ashamed of himself.

The Republican "Southern Strategy" was born of race-baiting and turned to gay-baiting when "nigger, nigger" no longer got white, conservative Christian blood flowing enough to ensure a high turnout.

The Republican shift from race-baiting to gay-baiting came in 1984 -- appropriately -- when Senator Jesse Helms, discovering that "nigger, nigger" no longer had much traction, even in North Carolina, characterized his campaign as a struggle between "the patriotic" and "the homosexuals".

Helms won big, and the die was cast. Gay-baiting has been the centerpiece of Republican politics ever since.

So it should come as no surprise that the President cynically uses irrational antipathy toward gays and lesbians for a few political percentage points.

The President may not "give a shit", but that hasn't stopped him from gay-baiting for political advantage. The President and his operatives have been gay-baiting throughout his political career.

In his 1994 race to unseat Ann Richards, the President was aided by a Karl Rove whisper campaign implying that Richards was a bit too close with gay and lesbian staffer. In the 2000 Presidential primary in South Carolina, John McCain was knocked out of the running by a fithly combination of race-baiting -- rumors that his daughter was black -- and gay-baiting -- plastering the state with a cover of a GLBT magazine that endorsed McCain. Senator McCain -- a war hero -- was a real threat to the President's primary chances in South Carolina, and the political operatives pulled out all the stops to remove the threat, then and there. And we all know about the election of 2004, when Karl Rove developed a strategy to boost white, conservative Christian turnout by engineering ballot amendments to ban same-sex marriage in battleground states.

And so it will be this year, in Wisconsin and in a number of other states where Republicans are in tight races.

In the long run, of course, "faggot, faggot" will prove as unsuccessful as "nigger, nigger", if for no other reason than that the raw bigotry of the effort has brought gays and lesbians out of the closet in droves, and reasonable, sensible straight folk are having to confront the fact that it is their neighbors that the Republicans are talking about.

The only question is whether it will work this election cycle.

Fruits and Nuts ...

I don't get gay and lesbian Republicans at all ...

I'm not talking about being Republican. I know gays and lesbians who agree with the overall Republican political philosophy and I get that ... Americans come in all political stripes, and gays and lesbians are no different than other Americans.

I'm not talking about staying in the Republican Party. I know gay and lesbians Republicans who have elected to stay and fight, and I get that ... many gay and lesbian Republicans believe in the avowed principles of the Republican Party, don't find those principles reflected in the Democratic Party, and are determined to bring modern Republicanism back to its avowed principles.

So what don't I get?

What I don't get is why gay and lesbian Republicans go all warm and squishy inside about politicians like Arnold Schwarzenegger and John McCain, lionizing them as if they are actually the Great White Hope.

John McCain

A lot of GLBT Republicans seem to think that John McCain, the Republican Senator from Arizona, is supportive of gay and lesbian equality, if the blogs I've been reading reflect GLBT Republican sentiment.

I don't get it. John McCain is firmly opposed to gay and lesbian equality, if his actions and positions have any meaning.

He voted against the federal PMA, to be sure, on federalist grounds, but his is a sponsor of Arizona's proposed PMA, which bans marriages, civil unions and domestic partnerships.

He recently reiterated his support for "Don't Ask, Don't Tell", because "All the senior members of the military say that itÂ’s working. I hold the same position." I mean, Christ. If DADT is working for anyone, it certainly isn't working for gay and lesbian service personnel.

And he won't take a stand on EDNA, the Employment Non-Discrimination Act. His most recent statement on ENDA was that he was "not familiar with that". Not familiar? The bill has been pending in Congress for about a decade.

This guy is the Great White Hope for gays and lesbians?

Yeah, well, maybe.

Arnold Schwarzenegger

And then there's Arnold Schwarzenegger, the Californina muscleman cum Georgeinator, who strongly believed that the issue of same-sex marriage should be "decided by the people".

Believed it, of course, until the California legislature enacted a bill allowing gays and lesbians to marry in California. The Georgeinator promptly changed his mind at that point, and vetoed the bill, saying that the issue should be decided by the courts.

So how do GBLT Republicans respond?

By inviting the Georginator to be the headline speaker for a national, megabucks per plate, fundraiser for the Log Cabin Republicans. Log Cabin President Patrick Guerrero told the Associated Press the Georgeinator is reciprocating Log Cabin's loyalty for endorsing him to unseat Democratic Governor Gray Davis in the 2003 recall.

Oh, spare me.

Fruits and Nuts

California is often dismissed in the rest of the country as "the land of the fruits and the nuts". I don't know about Republican "fruits", but I think that the GLBT Republicans are giving new meaning to the word "nuts".

... that dare not speak its name ...

In the end, it was pathetic.

The President of the United States, looking for all the world like an Edgar Bergen mannequin, was reduced to mouthing the coded catch words of the Religious Right in an attempt to salvage the wreckage his romance with social conservatives has brought upon the Republican Party.

The President's pronouncements were, truth be told, a contentless string of social conservative proof-texts:

"Thank you all. Thank you all. Please be seated.

Good afternoon and welcome to the White House. It is a pleasure to be with so many fine community leaders, scholars, family organizations, religious leaders, Republicans, Democrats, Independents. Thank you all for coming.

You come from many backgrounds and faith traditions, yet united in this common belief: Marriage is the most fundamental institution of civilization, and it should not be redefined by activist judges. (Applause.)

You are here because you strongly support a constitutional amendment that defines marriage as the union of a man and a woman, and I am proud to stand with you. (Applause.)

This week the Senate begins debate on the Marriage Protection Amendment, and I call on the Congress to pass this amendment, send it to the states for ratification, so we can take this issue out of the hands of overreaching judges and put it back where it belongs: in the hands of the American people. (Applause.)

The union of a man and woman in marriage is the most enduring and important human institution. For ages, in every culture, human beings have understood that marriage is critical to the well-being of families. And because families pass on values and shape character, marriage is also critical to the health of society. Our policies should aim to strengthen families, not undermine them -- and changing the definition of marriage would undermine the family structure.

America is a free society, which limits the role of government in the lives of our citizens. In this country, people are free to choose how they live their lives. In our free society, decisions about a fundamental social institution as marriage should be made by the people. (Applause.)

The American people have spoken clearly on this issue through their elected representatives and at the ballot box. In 1996, Congress approved the Defense of Marriage Act by large bipartisan majorities in both the House and the Senate, and President Clinton signed it into law. And since then 19 states have held referendums to amend their state constitutions to protect the traditional definition of marriage. In every case the amendments were approved by decisive majorities, with an average of 71 percent. (Applause.)

Today 45 of the 50 states have either a state constitutional amendment or statute defining marriage as a union of a man and a woman. These amendments and laws express a broad consensus in our country for protecting the institution of marriage. The people have spoken. Unfortunately, this consensus is being undermined by activist judges and local officials who have struck down state laws protecting marriage and made an aggressive attempt to redefine marriage.

Since 2004, state courts in Washington and California and Maryland and New York have ruled against marriage laws. Last year, a federal judge in Nebraska overturned a state constitutional amendment banning same-sex marriage, an amendment that was approved by 70 percent of the population. And at this moment, nine states face lawsuits challenging the marriage laws they have on the books.

Some argue that defining marriage should be left to the states. The fact is, state legislatures are trying to address this issue -- but -- (applause) -- but across the country they are being thwarted by activist judges who are overturning the expressed will of their people. And these court decisions could have an impact on our whole nation.

The Defensive Marriage Act declares that no state is required to accept another state's definition of marriage. If that act is overturned by the courts, then marriage recognized in one city or state may have to be recognized as marriages everywhere else. That would mean that every state would have to recognize marriages redefined by judges in, say, Massachusetts or local officials in San Francisco no matter what their own state laws or their state constitutions say.

This national question requires a national solution. And on an issue of such profound importance, that solution should come not from the courts but from the people of the United States. (Applause.) An amendment to the Constitution is necessary because activist courts have left our nation with no other choice. When judges insist on imposing their arbitrary will on the people, the only alternative left to the people is an amendment to the Constitution -- the only law a court cannot overturn.

The constitutional amendment that the Senate will consider this week would fully protect marriage from being redefined. It will leave state legislatures free to make their own choices in defining legal arrangements other than marriage.

A constitutional amendment is the most democratic process by which our country can resolve this issue. In their wisdom, our Founders set a high bar for amending the Constitution. An amendment must be approved by two-thirds of the House and the Senate and then ratified by three-fourths of the 50 state legislatures.

This process guarantees that every state legislature and every community in our nation will have a voice and a say in deciding this issue. (Applause.) A constitutional amendment would not take this issue away from the states as some have argued. It would take the issue away from the courts and put it directly before the American people. (Applause.)

As this debate goes forward, every American deserves to be treated with tolerance and respect and dignity. (Applause.) Now on an issue of this great significance, opinions are strong and emotions run deep, and all of us have a duty to conduct this discussion with civility and decency toward one another. All people deserve to have their voices heard, and a constitutional amendment will ensure that they are heard. (Applause.)

I appreciate you taking an interest in this fundamental issue. It's an important issue for our country to debate and to resolve, and the best way to resolve this issue is to a constitutional amendment, which I strongly support.

God bless. (Applause.)"

Read the President's remarks again. Can you tell, from his remarks, what the Marriage Protection Amendment is about, or why it is needed?

Reading the President's remarks, you have no way of knowing that our country is engaged in a fierce political and constitutional debate over same-sex marriage and equal protection under the law for gays and lesbians.

In fact, if you read the totality of the President's remarks about the debate over the last few years -- the single-issue press anouncement he held before the 2004 election, the State of the Union remarks, and his recent statements, you'd come away mystified about the reason he is speaking.

The President, as far as I can tell, has never uttered the words "gay", "lesbian" or "homosexual" in public. The President, as far as I can tell, has never directly discussed same-sex marriage or equal protection for gays and lesbians.

Just what is the President talking about?

You can't tell, and he can't bring himself to say.

I've thought about this in my idle moments for a week now, and gays and lesbians deserve better than platitudes like "The union of a man and woman in marriage is the most enduring and important human institution. For ages, in every culture, human beings have understood that marriage is critical to the well-being of families."

It is not too much to ask the President of the United States, who "stands with" the social and religious forces who vehemently oppose same-sex marriage and equal protection for gays and lesbians, to directly address gays and lesbians and explain to them why he, the President of the United States, believes that it is necessary to ban same-sex marriage and deny gay and lesbian citizens equal protection under the law.

And even if the President of the United States cannot speak to us -- it would cost him votes to acknowledge that we are worth addressing, and he can't afford to lose a single vote right now -- it is certainly not too much to ask the President of the United States, when speaking in favor of amending the Constitution of the United States to enshrine unequal treatment of gay and lesbian citizens into our foundational compact as a country, to at least acknowledge that he is talking about us.

"As this debate goes forward, every American deserves to be treated with tolerance and respect and dignity. (Applause.) Now on an issue of this great significance, opinions are strong and emotions run deep, and all of us have a duty to conduct this discussion with civility and decency toward one another. All people deserve to have their voices heard, and a constitutional amendment will ensure that they are heard. (Applause.)"

The President cannot even bring himself to utter the words "gay", "lesbian" or "homosexual" in public, and he talks about "dignity"?

In the world inhabited by George Bush, the last fifty years of struggle don't exist. In the world of George Bush, gays and lesbians are so insignificant that we can't even be talked about, let alone talked to.

Ground Hogs Day

As was the case during the 2004 election cycle, the PMA was defeated this morning, with voting on cloture running along party lines.

The following Senators crossed party lines:

Republican Senators Chafee of Rhode Island, Collins of Maine, Gregg of New Hampshire, McCain of Arizona, Snowe of Maine, Specter of Pennsylvania and Sununu of New Hampshire crossed party lines to vote against the amendment.

Democrat Senators Nelson of Nebraska and Byrd of West Virginia crossed party lines to vote for the amendment.

Defeat, however, will not put an end to the PMA.

According to Senator Orin Hatch of Utah, we can look forward to the PMA being resuscitated during future election cycles: "Whether it passes or not this time, I do not believe the sponsors are going to fall back and cry about it. I think they are going to keep bringing it up."

Yeah, just like the movie like Ground Hogs Day.

The Amendment

I'm going to post a number statements and/or excerpts from the Senate's debate on the PMA today.

Senator Feingold of Wisconsin

Senator Russ Feingold of Wisconsin endorsed same-sex marriage in April. The following is Senator Russ Feingold's statement in full:

Mr. President, the Constitution of the United States is an historic guarantee of individual freedom. For over two centuries it has served as a beacon of hope, an example to people around the world who yearn to be free and to live their lives without government interference with their most basic personal decisions. I took an oath when I joined this body to support and defend the Constitution. I am saddened, therefore, to be once again debating an amendment to our Constitution that is so inconsistent with our Nation's history of expanding and protecting freedom.

There are serious issues facing this Congress -- the war in Iraq, health care, high gas prices, relief and recovery after Hurricane Katrina, the economy. These are the issues on which the American people are demanding that Congress act. But instead, we are spending much of this week debating this poorly thought out, divisive, and politically motivated constitutional amendment that everyone knows has no chance of success in the Senate.

The proposed constitutional amendment before the Senate today, S. J. Res. 1, has no better chance of getting a two-thirds majority in the Senate than it did in 2004, another election year. There are no new court decisions that supporters of the amendment can legitimately argue make it any more imperative now than it was then that such an amendment be passed. Yet the Judiciary Committee was ordered to mark up this amendment to fit a schedule announced by the Majority Leader months ago.

This is pure politics, an election year gambit. Mr. President, we should not play politics with the Constitution. Nor should we play politics with the lives of gay and lesbian Americans who correctly see this constitutional amendment as an effort to make them permanent second class citizens.

The amendment we are debating will not pass, but it still risks stoking fear and divisiveness at a time when we should be trying to unite Americans. Gay and lesbian Americans are our friends, our family members, our neighbors, our colleagues. They should not be used as pawns in a cynical political exercise.

Backers of the amendment say that want to support marriage. But Mr. President, this debate is not really about supporting marriage. We all agree that good and strong marriages should be supported and celebrated. I happen to believe that two adults who love each other and want to make a lifelong commitment to each other, with all of the responsibilities that that entails, should be able to do so, regardless of their sex. I know others strongly disagree.

The debate we are having in the Senate, however, is not about whether states should permit same sex marriage. The debate is about whether we should amend the Constitution of the United States to define marriage. The answer to that question has to be "no." It is unnecessary and wrong for Congress to legislate for all States, for all time, on a matter that has been traditionally handled by the States and religious institutions since the founding of our Nation. For that reason alone, this amendment should be defeated.

There is no doubt that the proposed federal marriage amendment would alter the basic principles of federalism that have served our nation well for over 200 years. The framers of our Constitution granted limited, enumerated powers to the Federal government, while reserving the remaining powers of government, including family law, to state governments. Marriage has traditionally been regulated by the States. As Professor Dale Carpenter told the Constitution Subcommittee in its first hearing on this topic nearly three years ago, "never before have we adopted a constitutional amendment to limit the States' ability to control their own family law." That is exactly what this proposed amendment would do. It would permanently restrict the ability of States to define and recognize marriage or any legally sanctioned unions as they see fit.

One of our distinguished former colleagues, Republican Senator Alan Simpson, opposes an amendment to the Constitution on marriage. In an op-ed in the Washington Post, he stated: "In our system of government, laws affecting family life are under the jurisdiction of the states, not the federal government. This is as it should be. ..... [Our Founders] saw that contentious social issues would be best handled in the legislatures of the states, where debates could be held closest to home. That's why we should let the states decide how best to define and recognize any legally sanctioned unions--marriage or otherwise."

Columnist William Safire has also urged his conservative colleagues to refrain from amending the Constitution in this way. Commentator George Will takes the same position.

I recognize that the current debate on same-sex marriage was hastened by a decision of the highest court in Massachusetts issued in late 2003. That decision, in a case called Goodridge, said that the State must issue marriage licenses to same-sex couples. But the court did not say that other States must do so, nor could it. And it did not say that churches, synagogues, mosques, or other religious institutions must recognize same-sex unions, nor could it. Even Governor Romney of Massachusetts, who testified before the Judiciary Committee in 2004, admitted that the court's decision in no way requires religious institutions to recognize same-sex unions. No religious institution is required to recognize same-sex unions in Massachusetts or elsewhere. That was true before the Goodridge decision, and it remains true today.

Indeed, as time has passed since the Massachusetts court ruling, I think it has become clear that passing a constitutional amendment would be an extreme and unnecessary reaction. States are in the process of addressing the issue of how to define marriage. Voters in several States passed marriage initiatives in the last election. The legislature in Connecticut recently passed a civil union bill and the Governor signed it. In California, a bill passed by the legislature to permit same-sex marriages was vetoed but new protections for domestic partners were signed into law. The States are addressing the issue in different ways, which is how our federal system generally works. I may agree with some state actions and disagree with others, but it would be a tragic mistake to cut this process off prematurely.

I was particularly struck by reports on what happened recently in the Massachusetts legislature. The legislature narrowly passed a constitutional amendment in 2004 to prohibit same-sex marriage, but when the amendment returned in 2005, as the Massachusetts Constitution requires in order to put it on the ballot, the legislature rejected it by a vote of 157 to 39. Many supporters of the amendment apparently changed their minds.

So we should think long and hard about pre-empting state legislatures or state initiative processes through a federal constitutional amendment that freezes in place a single, restrictive definition of marriage.

The supporters of the federal marriage amendment would have Americans believe that the courts are poised to strike down marriage laws. They suggest that we will soon see courts in States other than Massachusetts requiring those States to recognize same-sex marriages, too. Of course, no such thing has happened in the two years since the Goodridge decision went into effect in May 2004. So this is a purely hypothetical issue -- hardly a sound basis for amending our Nation's governing charter. And even if another State followed Massachusetts, either by legislative action or a judicial ruling, I believe it would be a grave mistake for Congress to step in.

As Professor Lea Brilmayer testified before the Constitution subcommittee in 2004, and as remains true today, no court has required a State to recognize a same-sex marriage performed in another State. And as Professor Carpenter testified, "the Full Faith and Credit Clause has never been understood to mean that every state must recognize every marriage performed in every other state. Each state may refuse to recognize a marriage performed in another state if that marriage would violate the public policy of that state."

In fact, Congress and many States have already taken steps to reaffirm this principle. In 1996, Congress passed the Defense of Marriage Act, a bill I did not support, but that is now the law. Section 2 of DOMA is effectively a reaffirmation of the Full Faith and Credit Clause as applied to marriage. It states that no State shall be forced to recognize a same-sex marriage authorized by another state.

In addition, 38 States have passed what have come to be called "State DOMAs,'' declaring as a matter of public policy that they will not recognize same-sex marriages.

There has not yet been a successful constitutional challenge to the Federal or State DOMAs. In fact, three such challenges have already failed. Of course, it is possible that the situation could change. A case could be brought challenging the Federal DOMA or a State DOMA, and the Supreme Court could strike it down. But do we really want to amend the Constitution simply to prevent the Supreme Court from reaching a particular result in the future? What kind of precedent would such a preemptive strike against the governing document of this nation set?

Former Representative Bob Barr, the author of the Federal DOMA, strongly opposes amending the Constitution on this issue. He believes that amending the Constitution with publicly contested social policies would "cheapen the sacrosanct nature of that document.''

He also warned: "We meddle with the Constitution to our own peril. If we begin to treat the Constitution as our personal sandbox, in which to build and destroy castles as we please, we risk diluting the grandeur of having a Constitution in the first place." My colleagues, those are the words of the author of the Federal DOMA statute. That is what he said about the wisdom of trying to amend the Constitution in this manner. I have spoken with Mr. Barr about this. He and I disagree about many things. But we agree wholeheartedly that the Constitution is a very special document and that amending it to enact the social policy of the moment would be a grave mistake.

Mr. President, so far I have been discussing the general arguments against a federal constitutional amendment defining marriage. I think they are compelling. But I also want to take some time today to discuss the specific text we are now considering: S.J. Res. 1, the so-called Marriage Protection Amendment. The amendment states: "Marriage in the United States shall consist only of the union of a man and a woman." That is what we have come to refer to as "Sentence One." The amendment continues in "Sentence Two": "Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman."

Before I discuss some of the ambiguities in this language, let me first remind my colleagues that this whole effort has often been portrayed by its proponents as a reaction to so-called "liberal activist judges" reinterpreting marriage. Time after time, we are told that judges have made law, in cases like the Supreme Court's decision in Lawrence v. Texas that state sodomy laws are unconstitutional, in the Massachusetts decision in Goodridge, and in the Vermont state court decision that forced the state legislature to adopt a civil unions law. This amendment is needed, we are told, to counteract and correct those missteps and to make sure they don't happen again. Keep that underlying concern in mind as we discuss the ambiguities of this language and who will ultimately decide how they are to be resolved.

A question that is important to many Senators, and to many Americans, as they consider this constitutional amendment is how it will apply to laws passed by state or local governments granting same sex couples the right to enter into civil unions or domestic partnerships to become eligible for government recognition of their relationships and for certain benefits. One of the witnesses at the last hearing we held in the Subcommittee on the Constitution, Prof. Michael Seidman, from Georgetown University Law Center, testified quite convincingly about the ambiguity of the language of this amendment on that question. And so the Chairman of the Subcommittee asked if he had thought about how to draft the amendment to, as he put it, "hit the mark."

Prof. Seidman responded: Part of the problem is I think the people behind the amendment themselves are not in agreement on how to go…. So with respect, Senator, I think you guys have to get straight what you want before you tell me how to go about drafting it.

Mr. President, at the last Subcommittee hearing on this topic, I asked the witnesses that Subcommittee Chairman Brownback had called some specific questions about this issue and then I asked them to respond to written questions about how they believe S. J. Res. 1 would apply to a challenge brought against specific state legislative actions. I have asked these questions of previous witnesses as well, and I have seen statements from many of the supporters of the amendment. I think Prof. Seidman is absolutely right. It is simply not clear what the sponsors of this amendment intend.

Let's start with civil unions. Would this amendment outlaw civil unions? Specifically, would the recently passed Connecticut statute that establishes civil unions in that State be unconstitutional under this amendment? The Connecticut statute provides as follows:

"Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether derived from the general statutes, administrative regulations or court rules, policy, common law or any other source of civil law, as are granted to spouses in a marriage, which is defined as the union of one man and one woman."

Prof. Richard Wilkins, from Brigham Young University, who I understand was consulted in the drafting of the amendment, answered my written question as follows: "The language quoted from Section 14 of the Connecticut statute would not be unconstitutional under the proposed amendment." But Prof. Gerard Bradley, from Notre Dame, another drafter of the amendment, testified as follows at our hearing in April:

"The amendment leaves it wide open for legislatures to extend some, many, most, perhaps all but one, I suppose, benefit of marriage to unmarried people, but I would say if it is a marriage in all but name, that is ruled out by the definition of marriage in the first sentence."

And Prof. Christopher Wolfe, from Marquette University, another witness from the subcommittee's last hearing, agrees with Prof. Bradley. He said the following in answer to my written question:

"I think Connecticut's civil union scheme, which was enacted by the General Assembly without any judicial involvement, would be unconstitutional under the Marriage Protection Amendment, because it effectively authorizes marriage for unions of two men or two women, since the only difference between civil unions and marriage is the name."

Groups supporting the amendment like the Alliance for Marriage and Concerned Women for America seem to think the amendment will permit legislatures to enact civil union legislation. In a radio interview during the Senate's consideration of the amendment in 2004, Bob Knight, the head of that Concerned Women for America, suggested that wasn't such a good thing. He said:

The second sentence was so convoluted that many legal scholars disagreed about what it actually meant, and its backers assured everyone that it meant states could pass civil unions, which is not the way to protect marriage. Civil unions are gay marriage by another name.

As recently as November 2005, the website of the Alliance for Marriage had the following explanation of a chart in which it says that "quasi-marital schemes" such as civil unions would be permitted if adopted by a state legislature rather than imposed by court:

"The second sentence ensures that the democratic process at the state level will continue to determine the allocation of the benefits associated with marriage."

Interestingly, this chart no longer appears on the website. I won't speculate about why that is, but it does seem like an important question for supporters of this amendment to get their stories straight on. There are states in the country today that authorize civil unions. How would this constitutional amendment affect those laws? We know what the supporters of the amendment intended with respect to the law in Massachusetts, but what about in Vermont, and Connecticut, and California, and New Jersey? What are duly elected state legislatures, in the exercise of their responsibility to enact laws consistent with the values and preferences of their citizens, allowed to do, and what are they prohibited from doing? Don't they deserve to know?

I could go on and on here Mr. President, but let me mention Prof. Scott Fitzgibbon of Boston College Law School, who also testified in support of the amendment at the Subcommittee's last hearing. Mr. Fitzgibbon simply declined to answer when I asked him at the hearing whether the amendment would allow a state employer to give benefits to unmarried domestic partners of its employees. And he also refused to answer a followup written question about whether Connecticut's civil union law would be constitutional. But he did say the following at the hearing:

"I am just going to say that the degree of ambiguity … isn't such a terrible thing. This isn't part of the tax code. It is proposedly [sic] a part of the United States Constitution and constitutional provisions rightly leave some scope for later determination."

So there you have it Mr. President. The supporters and drafters of this amendment can't agree on how it would affect civil union laws like the one recently enacted by the democratically elected legislature of the State of Connecticut. And at least one of them says that ambiguity is not such a bad thing. It's normal for constitutional provisions to leave "some scope for later determination" he says.

So who will decide this question, which everyone can anticipate will be raised if this amendment becomes part of the Constitution? Who is responsible in our legal system for making a "later determination," as Prof. Fitzgibbon calls it, of the meaning of a constitutional amendment? You guessed it, Mr. President, the courts! Given how this whole exercise of trying to define marriage in the governing document of our country started – outrage over a state court's interpretation of a state constitution and fear of supposedly "activist judges" taking it upon themselves to redefine marriage -- that is ironic indeed.

Now Prof. Wolfe had an interesting suggestion when he answered my written questions concerning the California and New Jersey domestic partner statutes. Last summer, the California legislature enacted a statute that grants all the same rights to domestic partners as it does to married spouses, except the right to file a joint tax return. All the rights and benefits but one. Under Professor Bradley's interpretation, that's probably ok. Professor Wilkins agrees that California's statute would survive a challenge. The chart that used to be on the Alliance for Marriage's website also agrees. I think a few of my colleagues made similar statements yesterday on the floor. But Prof. Wolfe isn't so sure. He says in his written response to my question:

"It could be argued that it is unconstitutional under the Marriage Protection Amendment for the same reason that the Connecticut civil union law is unconstitutional, since–even though one provision provides one exception–the general principle of the law (in SEC. 4) defines the domestic partnership as being equivalent to marriage. The single exception could easily be viewed as merely an evasive maneuver to avoid a pure equivalence that would make the statute constitutionally vulnerable.

"It could also be argued, however, that there is a difference between this domestic partnership law and marriage (beyond just the name), and therefore domestic partnership is not marriage in everything but name, and therefore it is within the constitutional power of the California legislature to pass…. In a close case like this, I think the legislative history would be likely to play a determinative role in the final decision."

He goes on in an answer concerning the New Jersey domestic partnership statute to make his suggestion:

Of course, it would be desirable to clarify this question, if possible. For example, offering an unambiguous statement of the meaning of the amendment in the legislative history (e.g., the committee report on the amendment, and representations–uncontradicted by other supporters of the amendment–of the amendment's sponsors in floor debate) would be likely to have a substantial impact on how the amendment would be understood by those who have to vote on it, in Congress and in state legislatures.

Well there's a novel idea. Let's have an "unambiguous statement" of the meaning of the amendment, uncontradicted by other supporters of the amendment. But Professor Wolfe, a supporter of the amendment, doesn't know what it is. He answered my questions as if they were a law school exam hypothetical. This amendment has been around for nearly three years and we still don't have that unambiguous statement. Will we get one in this debate on the floor? I don't know. I do know that some of the most ardent supporters of the amendment in the Senate are strongly opposed to civil unions as well. But will the amendment they wrote to supposedly protect marriage outlaw civil unions and domestic partnerships? It's not clear to me yet, and when we are talking about amending the Constitution of the United States, I think it should be.

The Senate and state legislatures – not to mention the American people -- deserve clear and reliable answers to these questions before they are asked to decide whether to amend the Constitution. So I would hope, Mr. President, that every Senator who is planning to vote Yes on this amendment today will tell us before we conclude this debate what he or she thinks the amendment means and how it would apply to state statutes already on the books, as well as others that might be passed. Maybe we will get that unambiguous statement we have waited so long for. Then again, maybe we won't.

Even though Prof. Wolfe answered my question as if it were a law school exam – saying "it could be argued on the one hand…. But on the other hand" – this is not just an academic exercise. It will have an impact on the lives of millions of Americans.

Mr. President, as you can tell, I am very concerned about the Senate considering this amendment on the floor without any certainty about what it means or how it will be applied. Fortunately, it seems clear that supporters of this amendment don't have the votes to pass it in the Senate. So the lack of clarity has no real world repercussions for now. But it is extremely disappointing that we may vote in the United States Senate on an amendment to the Constitution of the United States with such basic questions unresolved.

The Judiciary Committee should have fully explored these questions. Instead, because of the rigid schedule to bring this matter to the floor, the Committee considered the amendment hastily and out of the public eye, without cameras, without microphones, with only a handful of press and no members of the public present. That is no way to treat any important legislative matter, let alone an amendment to the basic governing charter of our country, the Constitution. As a result, the amendment did not receive the kind of searching inquiry and debate that a constitutional amendment should receive. Our hearings in the Subcommittee on the Constitution exposed serious questions about the meaning and effect of the amendment, including the conflicting answers to written questions that I have discussed. Further work in the Committee might have shed light on those questions for our colleagues in the Senate who are now faced with having to vote on the amendment. But it seems that politics often trumps reason in this body during an election year. And when the Majority Leader has promised interest groups supporting this amendment that there will be a floor consideration on a particular day, there is apparently nothing that can stand in the way of that promise being kept. Not even respect for the Constitution of the United States.

Mr. President, we should not write discrimination and prejudice into the Constitution. And we should not prematurely cut off the important debates taking place in States across the country about how to define marriage by putting in place a permanent, restrictive federal definition of marriage.

As we sit here today, there are Americans across our country out of work, struggling to pay the month's bills, worrying about their lack of health insurance or their ability to put their kids through college. Instead of spending our limited time this session on a proposal that is destined to fail and will only divide Americans from one another, we should be addressing the issues that will make our Nation more secure, our communities stronger, and the future of our families brighter.

I urge my colleagues to oppose this unnecessary, mean-spirited, divisive and poorly thought out constitutional amendment.

Senator Kennedy of Massachusetts

Senator Edward Kennedy of Massachusetts has issued a number of press statements ridiculing Republican concern that the sky will fall if same-sex marriage in Massachusetts is allowed to continue. The following are excerpts from Senator Kennedy's statement to the Senate:

Let’s be clear about what this debate is really about. It’s a blatant effort to deny some members of our society the right to receive the same benefits and protections that married couples now have. Like this Senate’s intrusion into the Terry Schiavo case, it is a cynical attempt to score political points by overriding state courts and intruding into individuals’ private lives and most personal decisions. It’s the politics of prejudice and division at its worst.

Make no mistake – a vote in support of this amendment has nothing to do with the “protection of marriage.” A vote for it is a vote against civil unions, against domestic partnerships, and against all other efforts by states to treat gays and lesbians fairly under the law. It’s a vote to impose discrimination on all 50 states, and to deny them their right to write and interpret their own state constitutions and state laws. It’s a vote to deny states the right to define what marriage equality means.

Marriage is a solemn commitment to plan a future together, to share in life’s celebrations, to be there as a source of comfort to ease life’s burdens and pains. This impacts real families with real-life struggles. When the citizens of a state have decided to recognize those families -- through their state constitution or state laws -- the Senate has no business undermining their personal, private decisions.

Some even claim that our recent action in Massachusetts is a threat to the rest of the nation. Over 8,000 couples have celebrated their commitment to each other since our Supreme Judicial Court ruled that the state constitution requires marriage equality.

In ruling to allow same-sex marriage, our state’s Supreme Judicial Court was interpreting the Massachusetts Constitution, not the U.S. Constitution. The court ruled that our state’s Constitution forbids the creation of second-class citizens. It concluded that the state could not deny the protections, benefits and obligations of civil marriage to two individuals—regardless of gender—who wish to marry.

Far from being a right created — as our opponents like to say — by activist judges, the right of all our citizens to have equal treatment under Massachusetts state laws was granted and approved by the people of Massachusetts when they voted on and adopted our State Constitution. The people said that our state’s Constitution forbids the creation of second-class citizens, and our courts affirmed equality for all. ...

Now some of our colleagues want to federalize the rights flowing from civil marriage and overrule individual state laws. How odd that the same people who oppose federal regulation in almost every other area now want a federal constitutional amendment to eviscerate state contract and property laws, but only when they grant benefits to same sex couples. That is discrimination, and it’s wrong.

In Massachusetts, marriage - and the stability and security it brings to families -- is alive and well. Indeed, Massachusetts has the lowest divorce rate in the nation. We’re having plenty of public debate and democratic process. The sky is not falling. Indeed, even the Boston Herald editorial page called this week’s Senate debate what it really is –- “pandering on a hot-button issue.”

I’m proud that Massachusetts continues to be a leader on marriage equality. Being part of a family is a basic right, and I look forward to the day when every state accepts this basic principle of fairness. ...

Supporters of the amendment claim that religious freedom is somehow under attack. It is – but the attack comes from this Federal Marriage Amendment – not from what’s happening in the states. This amendment is an Anti-Marriage Amendment. It tells churches they cannot recognize a same-sex marriage, even though many churches are now doing so.

No church in Massachusetts is required to recognize any civil marriage. Indeed, my own Catholic Church does not recognize most post-divorce second marriages between a man and a woman, and that’s their legal prerogative. By the same token, they are not required to recognize same sex marriages. The law of each church is what determines the religious aspects of a sacramental marriage. But the law of the states is what determines the civil aspects and property rights flowing from a marriage contract.

We cannot – and should not – require any religion or any church to accept any marriage as sacramental. That’s up to the particular religion. But it is wrong for our civil laws to deny any American the basic right to be part of a family, to have loved ones with whom to build a secure future and share life’s joys and tears, and to be free from the stain of bigotry and discrimination. ...

Supporters of the Federal Marriage Amendment claim the need to stop activist judges. Our colleagues should recall the words of another activist court:

“The freedom to marry has long been recognized as one of the most vital personal property rights essential to the orderly pursuit of happiness.”

The activist judges stating this fundamental belief were part of the Supreme Court’s 1967 decision in the landmark case Loving v. Virginia, which held that marriage is a basic civil right, and that freedom to marry a person of another race may not be restricted by racial discrimination.

Now, nearly forty years later, I urge the Senate not to turn back the clock on this progress, or start writing discrimination into our country’s most cherished document. The framers never wanted it to be used for short-term political games – that’s why it is so difficult to amend. As Chief Justice John Marshall said, the Constitution is “intended to endure for ages to come.”

Senator Warner of Virginia

The PMA is, like a number of the amendments passed at the state level in 2004, of the "bait and switch" variety -- ambiguously worded so that it is not clear whether the second sentence of the amendment permits or prohibits civil unions or domestic partnerships.

Senator John Warner of Virginia, who is no friend of same-sex marriage, made a reasoned, lawyer's argument against the amendment, pointing out the amendment's ambigous wording and its consequences:

When considering proposed amendments to the United States Constitution, I first look back to history. In the summer of 1787, 55 individuals gathered in Philadelphia to write our Constitution. It was a very hot summer, and it was a long and arduous debate, many drafts back and forth, but careful consideration was given. Finally, in mid September, it was over.

The Constitution they produced was a monumental achievement. But the Framers did not know at that time what a great achievement they had made, one that would enable the United States, today, these 200-plus years later, to become the oldest continuously surviving Republic form of government on Earth today.

Article V of the U.S. Constitution lays out the process for amending this magnificent document. In their wisdom, our Founding Fathers purposefully made the task immensely formidable. Of both Houses of Congress, two-thirds have to vote in favor of passing a proposed amendment. Subsequently, three-fourths of the states have to ratify that amendment over a period of time.

History documents that there have been many attempts to amend the U.S. Constitution. According to one study - since 1789, over 10,000 amendments to the Constitution have been proposed in Congress, but only 27 have ever been ratified.

With this historical framework in mind, I have reviewed S.J. Res 1 - the Marriage Protection Amendment.

The proposed constitutional amendment is simply two sentences. The first sentence reads that marriage in the United States shall only consist of the union of a man and a woman. This is a concept which I have consistently voted in support of - beginning with the Defense of Marriage Act in 1996, and basically on this same constitutional amendment 2 years ago. The time-honored, deeply rooted tradition of marriage between a man and a woman ought to be protected, and I support that.

But the second sentence of the proposed amendment gives me great concern. It states that neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.

It gives me concern because I don't think the second sentence speaks with the clarity to which the American people are entitled. Any number of calls are coming into my office, as they are to other Members, and clearly the callers are focusing on the first sentence. When you try to explain the second sentence, they don't understand it.

My colleagues who are supportive of this proposed constitutional amendment have stated that it is their intent that this second sentence will leave to the several States the decision of whether to recognize relationships other than marriage, such as civil unions or domestic partnerships. But if that is the case, why not simply state that in plain English that is understandable for the millions upon millions of Americans who are interested in this amendment?

It is amazing to me that a little more than two weeks ago, this Senate overwhelmingly approved an amendment to make English the national language of the United States. Yet today we debate an amendment to the U.S. Constitution -- one of the most grave responsibilities incumbent upon Members of Congress -- America's founding document -- and the second sentence of that proposed amendment fails in many ways to speak with the clarity of the English language to which our public is entitled.

Some who have spoken in support of this proposed amendment have employed a box chart on the floor of the Senate in an effort to demonstrate that the resolution would protect marriage but permit States to recognize relationships other than marriage. If this is the case, why not simply say so? Why not simply say that the power to recognize or to prohibit relationships other than marriage shall be reserved to the several States? Or why not simply drop the second sentence altogether if it is confusing? Either option would clearly allow the 50 States to work their will on the issues of civil unions or domestic partnerships. I believe it is extremely important that we leave to the States that responsibility.

If we wrote the second sentence plainly, we wouldn't need a box chart to sit here on the floor and try to decipher it.

My own State, the Commonwealth of Virginia, is trying to work its own will on these issues right now. With the lack of clarity in this proposed federal amendment, I have to wonder whether the proposed federal amendment respects the right of the several States to act in this area.

As the second sentence of this proposed amendment is written now, the intent of the amendment simply isn't clear. What if a State legislature wanted to pass a State constitutional amendment to allow domestic partnerships? As I read this proposed amendment, it would likely preclude a State legislature from so acting. This type of unnecessary confusion will undoubtedly lead to considerable litigation if this proposed amendment is accepted in its current form.

That, it seems to me, is not the duty of the Congress of the United States, to write something that just calls upon the courts to try to determine what was the intent of the Congress. Then we have to go to the box charts. Well, to me, the box charts speak in plain English language, and that is why I am hopeful that the framers of this amendment will perhaps consider amending it.

Therein rests the concern I have with S.J. Res. 1. I unequivocally support the first sentence; I support protecting marriage as the union between a man and a woman. I am concerned, however, that the second sentence of this proposed constitutional amendment is unnecessarily vague and could well trample on the rights of the several States of our great Republic.

As I did two years ago when this Amendment was first considered, I intend to vote in favor of proceeding to consider this important issue in the Senate. Again, I believe that marriage should remain between a man and a woman. In the event cloture is invoked on the resolution, however, I will work with my colleagues to amend the legislation so that it makes clear and plain that decisions about civil unions will be left to the individual states.

Other voices ...

A smattering of other remarks, with comments.

Senator Allard of Colorago

"Marriage—the union of a man and a woman—has been the foundation of every civilization in human history. It is incorporated into the fabric of our culture and civil life. It is the platform on which children, families, and communities are nurtured.... My amendment takes the issue out of the hands of a handful of activist judges and puts it squarely back in the hands of the people."

The PMA takes the issue out of the hands of the people of the several states, is what it does, eliminating the prospect that the American people will be able to develop practical, sensible and fair solutions through the legislative process.

Senator Brownback of Kansas

"[W]e know from all the social data, in all societies, at all times, that the best place to raise children is [within] the union of a man and a woman. ... You can raise good children in other settings, but the best—the optimal setting—is in the union between a man and a woman, bonded together for life. ... That's something we've got social data on, but we also know that in our hearts."

So, at a time when half the marriages end of in divorce, a majority of kids are being raised in households without their mother and father both present, and an increasing number of Americans are staying out of marriage, you think that the solution is to keep gays and lesbians from marrying?

Look, if you are right -- "we can raise good children in other settings" -- why not give gays and lesbians who are raising good children legal protections to make their path smoother?

Senator Santorum of Pennsylvania

"When a court makes a judicial decision, they do so based on a judicial foundation that has a logical and rational basis to it and has logical consequences to it.... What Massachusetts did was the logical [conclusion] from Lawrence v. Texas.... It is the basis upon which they built their decision."

Senator Santorum went on to say that the legislative process didn't rely on logic and rationality. At least in the case of the PMA, he got that right.

Senator Thune of South Dakota

"Nothing is more fundamental, nothing is more important to the fabric of the American society than the family. And that is what this debate is really all about."

Well, actually not. If the debate were about the family, the Senate would be discussing the family -- traditional families, single-parent families, adoptive families, and so on.

The debate is about one thing -- amending the Constitution of the United States to keep the several states from recognizing same-sex marriage, whether or not that is what the people of those states want to do.

Senator Talent of Missouri

"It's clear that there's a well-organized and deliberate movement in this country to redefine marriage, to change our most social institution, without regard to the right of the people to govern themselves. Unless we pass a constitutional amendment, we'll allow the courts of this country to disenfranchise tens of millions of Americans on an issue that is of greater importance to them on a day-to-day basis—because it involves the way in which their children and other peoples' children are going to be raised—than most of the legislation that we debate."

That's the real concern, isn't it, Senator Talent -- the relgiious right is concerned about how other people's children are being raised. Abby had a would for this: "MYOB".

Senator Inhofe of Oklahoma



"As you see here, and I think this is maybe the most important prop we'll have during the entire debate, my wife and I have been married 47 years. We have 20 kids and grandkids. I'm really proud to say that in the recorded history of our family, we've never had a divorce or any kind of a homosexual relationship."

Give it time, Senator, give it time.

Senator Shelby of Alabama

"[J]udges have taken upon themselves to make decisions reserved for state legislatures.... [T]hese activist judges do not have to be responsive to anyone and are accountable to no one. Abraham Lincoln reminded us in the Gettysburg Address that we have a government of the people, by the people and for the people. Activist judges, accountable to no one, should not be allowed to govern this country."

Gosh, Senator, its good to hear that lovely Alabama drawl carrying on about "activist judges" thwarting the will of the fine people of Alabama again. Now, when are the fine people of Alabama going to repeal the clause in your state constitution mandating segregation?

Senator Sessions of Alabama

"We are not here because of some political agenda. [Instead,] traditional, mainstream Americans were going about their business when out of the blue, courts began a pattern of rulings that subverted democratic principles and subverted a long-held meaning of marriage."

Gosh, Senator, its good to hear that lovely Alabama drawl carrying on about "activist judges" thwarting the will of the fine people of Alabama again. Now, when are the fine people of Alabama going to repeal the clause in your state constitution mandating segregation?

Oh, I'm repeating myself. But then, so are you two.

Full Faith and Credit

Christopher commented last night on my post about John McCain:

"But marriage is not just a matter of the states when it comes to immigration matters and the like, then it clearly does involve the federal government -- good faith and credit clause in the Constitution and all. I can imagine a union in which 49 states have civil unions and 1 does not allow any such thing and because of DOMA those in international same sex relationships are simply out of luck."

Christopher's point is a good one. I can imagine something like that myself.

My own view is that if the issue of same-sex marriage/civil unions were allowed to run its natural course, without a federal amendment or US Supreme Court decision cutting off the political and legislative process in the several states, we will see a pattern emerge much like we did on sodomy -- about two thirds of the states recognizing same-sex marriage or equivalent civil unions, and about a third refusing to recognize either.

The Full Faith and Credit Clause will operate, within this mosaic of state laws, to require some states to recognize marriages or civil unions from other states, but not in all cases, further complicating the legal landscape for gay and lesbian couples.

The question will turn, in each state, on the marriage law of that state.

Although the Full Faith and Credit Clause usually operates to validate marriages across state lines, longstanding case lines hold that a state need not recognize a marriage entered into in another state if the marriage is contrary to the state's public policy.

The "public policy exception" is almost as old as the US legal system. In the marriage area, the public policy exception has been held to prevent cross-state migration of marriages between first cousins, marriages between persons too recently divorced, marriages between persons under the age of consent, and, until the Loving decision, marriages between persons of different races.

Assuming that the courts continue to follow the historic practice, whether or not a marriage or civil union contracted in one state is recognized in another will turn on the marriage laws of that state, and the Full Faith and Credit clause will not necessarily require cross-state recognition of same-sex marrriages, civil unions and domestic partnerships.

So it looks like the legal landscape surrounding GLBT marriage is going to be a mess for many years. It is the price we pay for a federal system. In my view, it is an acceptable price to pay for a government with separated powers, however frustrating it may be for gay and lesbian couples.

Ultimately, through, I think that we'll see a Supreme Court decision that holds in favor of same-sex marriage on a national level, on equal protection grounds, in a holding that will find state bans on same-sex marriage unconstitutional.

As ill-tempered as Justice Scalia's dissent in Lawrence was, I think that he was right -- when the states' right to criminalize sodomy was removed, the constitutional basis for denying equal protection in marriage dissolved, and the states will have to demonstrate that they have a strong reason to discriminate against GLBT couples.

The question has been tested in four states now (Alaska, Hawaii, Massachusetts and Vermont) and in each case, the decisions were remarkably similar. The pattern of decisions will, I think. hold as more and more state courts take up the question, because the states' justifications for confining marriage to opposite-sex couples do not stand up to equal protection scrutiny.

And when the question is "ripe" for decision by the United States Supreme Court, I think that Justice Scalia's prediction in Lawrence will become fact:

"The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada ...

At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” ...

Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” ...

Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.

If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.

This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so."

HIV/AIDS

Twenty-five years ago today, the Centers for Disease Control and Prevention released its first report on an illness that would come to be known as HIV/AIDS.

Since that date, more than 25 million people have died of the disease worldwide, and according to the CDC, more than 500,000 Americans have died of the disease.

The President of the United States did not see fit to mark the occasion with any words about HIV/AIDS. He marked the occasion by reading a statement indicating his strong support for amending the Constitution of the United States to deny marriage equality to gays and lesbians.

A Play Toy - NOT

We are in for another round of MPA politics. The President is scheduled to "strongly support" the MPA in a Rose Garden appearance next Monday.

We can expect the usual platitudes about "activist judges" and the need to "protect marriage" by keeping it out of the hands of gays and lesbians.

But when the President has duly bloviated and Republican Senators on their third and fourth marriages have waxed eloquent about the "sanctity of marriage", the Senate is going to vote the MPA down more or less along party lines.

Then we can get on to the real purpose of the MPA, which is to allow the GOP to use us as fodder to "energize the base" and try to squeak out phyrric victories.

The victories, to the extent that the GOP gets them, will be phyrric because GBLT folk are going to win this war. The American people have settled down since the panic of 2004, and the trend toward acceptance of GLBT equality is back on track, reflecting the ongoing shift in opinion that has been tracked now for almost two decades.

I think that it is important to remember that ... the Republicans may just be forgetting that to their peril.

The MPA is an unwarranted and unnecessary intrusion of the federal government into marriage law, historically a "reserved power".

The MPA, if enacted by Congress and ratified by the several states, will end the power of states -- including Wisconsin -- to find sensible, reasonable, practical solutions for protecting gay and lesbian families. Depending on the state involved, the solution might take the form of civil unions or domestic partnerships, which offer many of the rights of marriage to gay and lesbian couples without granting the right to marry. Or the solution might take the form of allowing same-sex civil marriage while expressly protecting religious marriage, respecting religious organizations who oppose same-sex marriage. Or the solution might take a different form, a form not yet known.

The MPA will put an end to the ability of the several states to find a legislative solution, imposing a national ban on the people of all of our states. The MPA, in effect, disenfranchises all Americans.

The MPA is a terrible idea from a constitutional standpoint, but beyond the substance of the matter, I'm disgusted with the use of same-sex marriage as a Republican election ploy, both at a national level and in our state of Wisconsin.

Gays and lesbians in Wisconsin, for the most part, live peacefully with their neighbors, doing what Wisconsin people do -- contributing to their communities and lending their hands when things need to get done.

Gays and lesbians are not a play toy to be used for political advantage by the Republican Party.