Analysis: When the United States Supreme Court struck down a Texas statute outlawing homosexual sodomy in Lawrence v. Texas, 123 S.Ct. 2472 (June 26, 2003), Tennessee Senator Bill Frist called for a constitutional amendment banning gay marriage. When the Massachusetts Supreme Court held in Goodridge v. Department of Public Health, 798 N.E.2d 941, Mass.,2003.(Nov. 18, 2003) that limiting the protections, benefits and obligations of civil marriage to individuals of opposite sexes lacked a rational basis and violated state constitutional equal protection principles, Senator Frist again called for a constitutional amendment banning "gay marriage." At a "Republican dinner" in Williamson County, Tennessee on Feb. 19, 2004, Senator Frist again called for a constitutional amendment banning gay marriage. Tennesseean, (2/20/04), p. 10A ("Frist Wants Constitutional Amendment to Ban Gay Marriages").
Respectfully, a consitutional amendment outlawing "gay marriage" is a misguided polarizing effort to divide our country and citizens on religious and moral grounds and misses a very moderate and sensible solution: civil unions that provide same-sex partners with rights and legal interests of married couples.
Currently 37 states have laws that are "Defense of Marriage Acts." The constituitonality of these laws is uncertain given the Massachusetts Supreme Court's recent opinion that even "civil unions" that have all the rights and benefits of marriage relegate same-sex couples to "second class citizens" in violation of the Massachusetts state constitution. In re Opinions of the Justices to the Senate, 440 Mass. 1201, 802 N.E.2d 565, Mass., Feb 03, 2004, By contrast, the State of Alaska (Bush 59%; Gore 28%) enacted a constitutional amendment to the Alaska Constitution in 1999 that "To be valid or recognized in this State, a marriage may exist only between one man and one woman." AK CONST Art. 1, § 25. Congress has also passed, at the federal level, the Defense of Marriage Act, 1 U.S.C. § 7 (2000) defining "marriage" as "only a legal union between one man and one woman as husband and wife," and "spouse" as "a person of the opposite sex who is a husband or a wife". The specific language of this law is as follows:
The effect of this federal law is largely aspirational because by far and away most laws affecting marriage and families are state laws. About a month before the U.S. Supreme Court's decision in Lawrence, a constitutional amendment was proposed in the House of Representatives providing that "[m]arriage in the United States shall consist only of the union of a man and a woman." H.R.J. Res. 56, 108th Cong. (2003). This proposed amendment would amend the U.S. Constitution to state:
A little more than a month after the Lawrence v. Texas decision, in response to "social conservatives" who were "seething" over Lawrence, President Bush stated that he was proposing official action, which might include a constitutional amendment, that would define marriage as a union between a man and a woman. Neil A. Lewis, Bush Backs Bid To Block Gays From Marrying, N.Y. Times, July 31, 2003, at A1.He has now done so.
Tenneessee's statutes contain hundreds of citations to "marriage" and, as personal injury lawyers are well aware, status as a spouse carries important legal rights including: the right to wrongful death damages as a surviving spouse; rights to inheritance as the immediate nexi-of kin; right to determine method of final disposition by burial or cremation; loss of consortium benefits; evidentintiary privileges; and protections against spousal abuse. The proposed amendment to the Constitution advocated by Rep. Musgarve (and endorsed by Bush) would prohibit any constitutional protections to same-sex couples relating to the "legal incidents of marriage." Most Americans, however, favor recognizing "the legal incidents of martriage" for same-sex couples as a "civil union." The moral or political overtones of "gay marriage" cloud the moderate view that same sex couples should have the same bundle of rights that married couples enjoy. The point was rather eloquently made by Vice-President Dick Cheney in his Oct. 2000 VP debate with Joe Lieberman:
What the law should do is recognize civil unions that carefully define what rights same-sex couples may enjoy. For example, the Eleventh Circuit has held that Florida may prevent same-sex couples from adoption, declining to extend the sexual privacy rationale to gay adoption. Lofton v. Secretary of Dept. of Children and Family Services, 2004 WL 161275, 17 Fla. L. Weekly Fed. C 201, 11th Cir.(Fla.), Jan 28, 2004. Cokie Roberts and Steven Roberts wrote an excellent op-ed article on just this issue. Escaping Extreme Views, Civil Unions Make Sense. The "gay marriage" label and the effort to Constitutionalize prohibitions aganist equal protection and due process for homosexuals obfuscates the real issue which is that discrimination against same-sex couples should not exist with respect to laws relating to inheritance, death, health, taxes, adoption and crimes.By invoking the "gay marriage" nomenclature and calling for a constitutional amendment for political purposes, Senator Frist (and President Bush) miss the issue and divide us further.