On Tuesday, the North Carolina Senate followed the lead of the state House and approved a proposed state constitutional amendment defining marriage only as one man and one woman. North Carolina voters will decide whether to add the proposed amendment to the state constitution in a vote during the primary in May 2012.

North Carolina voters will join Minnesota voters in 2012 in deciding whether to add marriage definition amendments to their respective state constitutions. The Minnesota Legislature earlier this year approved a similar proposed amendment to the state constitution that would define marriage only as one man and one woman. Voters in the North Star State will decide whether to add it to the state constitution in November 2012. The Indiana Legislature also approved a marriage amendment, but it must pass the Legislature again after the 2012 election before it goes to the people for a popular vote.

Currently, 29 states have state constitutional amendments defining marriage.  Additionally, Hawaii has a provision giving exclusive jurisdiction to define marriage to the state legislature. Six states and the District of Columbia have legalized same-sex “marriage.” Three of the states (Massachusetts, Iowa and Connecticut) had same sex marriage imposed by court decrees. In three states (Vermont, New Hampshire and New York) and the District of Columbia, elected officials voted to change the definition of marriage to include same sex couples.

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     Wednesday the Senate Judiciary Committee heard testimony on a bill to repeal the federal Defense of Marriage Act (DOMA). ADF attorney Austin Nimocks testified against the bill and did an excellent job explaining the purpose of marriage in having children raised in the best social environment possible, one consisting of the child’s own biological mother and father who are united in marriage, and the importance of maintaining that common understanding of marriage in federal law. DOMA was signed into law by President Clinton in 1996 after being approved by huge majorities in both houses of Congress.

However, Democrats, including those on the Senate Judiciary Committee, now oppose DOMA, even though many of them voted for it in 1996 because they now support redefining marriage to include same sex couples.  Although the Democrats have a 53-47 majority in the Senate, it is uncertain whether this repeal could overcome a filibuster in the Senate, and it would not be approved by the Republican majority in the House of Representatives.  On Monday, President Obama said that he supported repeal of DOMA.

DOMA has two major parts.  One part allows states to decline to recognize a marriage consisting of a same sex couple that was legally entered into in another state.  The other major part of DOMA defines marriage only as one man and one woman for purposes of federal law.

I was able to assist Austin and watch the DOMA hearing at the Senate Judiciary Committee.  I offer several observations:

  1. The hearing hid the fact that the DOMA repeal could force all states to recognize same-sex marriages.

The Democrats who orchestrated this hearing cleverly directed its focus away from one of the major aspects of the DOMA repeal legislation that many would oppose – DOMA repeal would wipe out the provision that says states are free to decline to recognize same-sex marriages legally obtained in another state.  We would see same-sex couples who have obtained a marriage license in one of the few states where it is legal, come to one of the many states with a state DOMA, and argue in court that the second state must recognize their same-sex marriage license, even though same sex marriage is not legally recognized in the second state.

This gets into a complicated area of constitutional law concerning “full faith and credit.”  Generally, full faith and credit means this: If a court in State A enters a judgment, for example, that Mary owes Sam $2000, then Sam can go to State B to get a court order to take some of Mary’s assets there to pay the judgment.  State B cannot refuse to honor the court decision from State A under the Constitution’s Full Faith and Credit Clause. But how does that apply to marriage,  because a marriage license is not a court order?  Generally, states do not have to recognize licenses obtained in another state.  So, if someone in State A obtains a driver’s license, or a license to practice law, or a realtor’s license or a marriage license, State B has the discretion whether to recognize that license or not.

Whether the second state will recognize the license depends on what kind of license we are talking about. Most states generally recognize marriage licenses entered into in other states, so a man and a woman do not have to get married again when they move to another state.  In contrast, states generally require people to get new driver’s licenses and licenses to practice law if they move to another state. Federal DOMA made it very clear that a state recognizing only marriages of one man and one woman would not have to recognize a marriage license from another state obtained by a same-sex couple.  As a constitutional attorney, I am not exactly sure what the repeal of DOMA would mean for this area of law.  States might very well retain the power to decline to recognize marriage licenses from another state, because of the states’ general authority under our Constitution’s system of federalism.

The Senate hearing on Wednesday focused on couples who lived in the five states that have legalized same-sex marriage (Massachusetts, Connecticut, New Hampshire, Vermont, Iowa, and on Sunday, New York, as well as the District of Columbia).  They had legal marriages under state law, but were not recognized under federal law.  However, the hearing barely mentioned that these couples could move, for example, to one of the 30 states with a state constitutional provision defining marriage only as one man and one woman, and challenging that provision.  In effect, this may be an effort to force all states to recognize same-sex marriage.  The hearing would have had a different tone if the Judiciary Committee had focused on this important effect of the proposed DOMA repeal.

    2. Many others besides same-sex couples have problems obtaining federal benefits, and Congress can fix the problems without redefining marriage.  The hearing consisted of a number of people who had obtained a marriage license in one of the states that has legalized same-sex marriage, and how they have had trouble obtaining federal benefits.  For example, one of the same-sex partners dies, and the surviving partner cannot obtain Social Security benefits that a married couple consisting of a man and a woman could obtain.

But the hearing did not explain that others have the same problem.  For example, a single person who is older and on Social Security benefits cannot pass his benefits to anyone  else when he dies, but a surviving married person could obtain the benefits of his or her deceased spouse.  Repealing federal DOMA would not help this single person pass his benefits to his niece or nephew.  His money would simply go back to the U.S. Treasury.  If a man is a federal worker and he cares for his sick grandmother, repeal of federal DOMA will not help him add her to his federal health insurance and he will not receive any Social Security money when she dies, because they are blood relatives who cannot marry. A woman who takes care of her adult brother with Down’s Syndrome must pay federal tax on the insurance coverage her employer extends to her brother.

Repeal of federal DOMA will do nothing to ease these unnecessary tax burden the brother and sister described above cannot legally marry anywhere.  The benefits issues should be addressed separately and Congres should enact solutions that help everyone with the problem, not just same sex couples.

Also, several legal challenges to federal DOMA are in courts around the nation.  The most advanced cases are in Massachusetts, pending before the U.S. Court of Appeals for the First Circuit in Boston.

Links:
1. Austin Nimocks written testimony
2. The entire DOMA hearing on c-span.
3. Youtube video of Austin Nimocks testimony and Q&A

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  The New York Times last Sunday published an opinions piece by Stanford Law Professor Ralph Richard Banks that essentially argues that American society has not achieved “marriage equality” by allowing same sex couples to marry. He argues that polygamy and incestuous marriage between adults should be legalized in order to evolve to full marriage equality:

Historically, both polygamy and incest have been more widely practiced, and accepted, than the Supreme Court, and most Americans, seem to believe.  Over time, our moral assessments of these practices will shift, just as they have with interracial marriage and same sex marriage. We will begin to take seriously questions that now seem beyond the pale: Should a state be permitted to imprison two cousins because they have sex or attempt to marry? Should a man and two wives be permitted to live together as a family when they assert that their religious convictions lead them to do so?

    So, as I and others have argued, the real issue is “marriage deconstruction” not “marriage equality” in the debate over whether same sex couples should be allowed to marry.   In other words, the fight is between those who believe that societies should encourage people to have sex and make babies only within a public institution called marriage, defined uniformly for all as one man and one woman.  The opposite view is not “allow same sex couples to marry,” but to abandon any common, culture-wide definition of marriage and allow each person to do what he or she thinks is right in regards to marriage, sex and family.  However, the harmful results societies suffer from this “self autonomy” view of marriage have caused world cultures to reject it. The common experience of human societies since the dawn of history is that the “self autonomy” model of sex, marriage and family causes men to act irresponsibly (because it is all about one’s self-fulfillment),by exploiting women and neglecting the children the men produce.

A society cannot sustain itself over time when it allows each person to define marriage and responsible sexual activity any way he wants.

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Greg Baylor wrote an excellent blog post on students at Christian colleges dealing with their desires to engage in same-sex behavior. I want to add that the student from Biola is confusing two distinct concepts – Biblical standards defining what is right and wrong, and how Christians treat others who violate those standards. Mr. Wolff, the student from Biola, essentially argues that merely to articulate the standard – that God’s design is for people to engage in sexual behavior only within marriage defined as one man and one woman – is itself hurtful and wrong when said to people who have desires to violate that standard. But to articulate the standard of what is right and wrong is a distinct issue from whether the speaker states the standard in a mean or cruel manner to others.  For example, if a shoplifter hears a Christian say, ”the Bible teaches that stealing is wrong,”  that statement is not inherently cruel, unless the Christian speaks with a judgmental attitude or a prideful attitude, etc.  Upon hearing those words, the shoplifter might experience inner conviction that his actions are wrong and he needs to change, but that does not mean that the speaker’s words was “hateful.”

The student from Biola may have experienced harshness from his fellow students or from faculty members, but maybe not.  That is not clear because what the student seems to want is to attend Biola and never have anyone say to him God’s standards on marriage. Is he really seeking more compassionate treatment for Christians struggling with desires to engage in same-sex behavior, or is he actually seeking to have Biola and other Christian colleges abandon their Biblical beliefs on marriage and instead say that there is nothing Biblically wrong with same-sex behavior?  Christian communities, such as a Christian college, should be places where people can hear God’s standards, and, when they fall short,  humbly admit to their sinful behavior, and find help to overcome it.  Changing the standards is not “compassion.”

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Author: ADF Senior Counsel Brian Raum

Something is rotten in the states of America… And it isn’t the state of marriage.

Despite a relentless pop-culture, a Big Media and education establishment-led propaganda campaign, and flawed polls screaming that marriage as we know it is doomed in the U.S., support for this foundation of our society is actually alive and well.

For those who believe the support for marriage as a union between one man and one woman has gone asunder in America, we direct you to a scientific survey sponsored by the Alliance Defense Fund and completed by Public Opinion Strategies last month.

When all the numbers were tallied up from what is believed to be the most extensive national research survey of its kind to date, it was confirmed that 62 percent of Americans believe that “marriage should be defined ONLY as a union between one man and one woman.”  A majority (53 percent) of Americans strongly agreed with this sentiment, and a slim 35 percent disagreed.  This comprehensive study of 1,500 Americans’ attitudes toward marriage included research from 14 focus groups from coast to coast.

If this isn’t enough to dispel the misguided claims and misrepresentative polls posturing that marriage in America is passé, please note that this survey is a strikingly accurate reflection of official polling results from the ballot box on this issue – putting the troubled leftist pipe dream in peril.  We’re talking about election statistics spanning from 1998 to 2008, when voters from 31 states were asked to support or reject a state marriage amendment.

California, back in the ancient days of 2008, when an ultra-right-wing presidential candidate received 137 percent of the state’s vote, a marriage amendment passed, sure.  Oh wait, that’s not what happened.  Despite being outspent by $3.5 million and lacking the support of every media, entertainment, cultural, union, educational, and political power structure, marriage proponents were able to pass Proposition 8 by four percent, with 52 percent of the vote.

Note also that Smurf-Blue Maine voted in 2009 to reverse a legislatively imposed redefinition of marriage and restored marriage in the state as it’s always been understood – the union of husband and wife – nothing more, nothing less.

In the 31 states that voted on a marriage protection amendment to determine whether the definition of marriage should stay as a union between a man and a woman within their borders, 63 percent of more than 63 million voters tipped the scales at “yes.”  Only 37 percent said “no.”  That’s nearly 40 million voters affirming marriage to some 23 million rejecting it – a decisive victory for the American family.

But what about the remaining states without such an amendment protecting marriage? (The federal government, along with 45 states, has preserved the definition of marriage either through constitutional amendment or statute.)  If would-be marriage re-definers are so confident, why do they oppose “taking it to the polls” and putting this very public policy decision in the hands of the public?  Some judges have already beat voters out of their right to decide the issue.

In Iowa, the voters reacted to the state supreme court’s imposition on same-sex “marriage” on the state by – in unprecedented fashion – throwing three of the justices off the court.  Iowans would likely have ejected all seven had they been given the opportunity.  Of the five states that issue “marriage” licenses to same-sex cohabitants, none have had marriage redefinition approved by the people, with three states having it forced on them by the courts.

So, in a day and age when it appears as if marriage is about to be swept under by a relentless wave of an anti-marriage culture, all we need to do is grab our [election] boards and say “surf’s up!”  Remember, we’re riding above the wave – not below it.