Posted 11:53pm January 28

by Jane Black
U-WIRE Washington Bureau

President Bush recently voiced support for a constitutional amendment that would ban gay marriages, pleasing conservative followers and giving needed ammunition to the Democratic Party in the 2004 presidential election.

In his State of the Union speech last Tuesday, loaded with conservative values, Bush indicated his support for an amendment to the U.S. Constitution that would limit marriage as between a man and a woman. He suggested that this option would only be needed if judges overruled existing federal and state Defense of Marriage laws.

“Activist judges, however, have begun redefining marriage by court order, without regard for the will of the people and their elected representatives…if judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process,” said Bush in his speech.

Many of those critical of Bush’s speech believe that his statement on a constitutional amendment was motivated in part to appease his conservative base of supporters. Bush also may have been motivated by recent steps taken by states to pave the way for the legality of homosexual marriages. Last November the Massachusetts Supreme Judicial Court held the state’s same-sex marriage ban unconstitutional, giving the state legislature six months to rewrite the state’s marriage laws.

“There is a very strong argument that this is a state matter… even some prominent conservatives have already written articles that a constitutional amendment would be a bad idea because marriage has traditionally been regulated by the states,” said Jonathan R. Siegel J.D., an expert in federal and state government relations.

Republican lawmakers in at least eight states are pushing for new legislation in the hopes of preventing other states from adopting stances similar to Massachusetts. Constitutional amendments banning gay marriage have already been proposed in Arizona, Georgia, Kentucky, Michigan, Oklahoma, and Virginia.

“Our nation must defend the sanctity of marriage,” said Bush, referring to the traditional way that marriage has been looked upon in the U.S.

The Defense of Marriage Act exists in 37 states. Former President Clinton was able to swiftly pass the act through congress in 1996. The Act strictly defines marriage as a legal union of one man and one woman and gives states the option not to recognize same-sex marriages, even if they were recognized in other states.

Many legal experts believe that the likelihood of getting such an amendment ratified before the next presidential election is impossible.

“There are a lot of barriers for amending the constitution because it is such a fundamental document,” said Todd D. Peterson, J.D., an expert in Structural Constitutional law and the federal judicial system. “The framers decided they didn’t want it changed unless there was an overwhelming consensus that it needed to be changed.”

No state currently allows full-fledged same-sex marriages. Vermont recognizes civil unions, which gives “marriage-style” benefits to gay couples. New Jersey, Hawaii and California all grant some rights to same-sex couples who are registered as domestic partners.

A complication of anti-gay marriage laws is that under the “full faith and credit clause” of the Constitution, states are required to recognize one another’s legal proceedings. Many argue that under this clause, a same-sex couple accorded certain rights in Vermont could go to another state and argue that their rights should be recognized, giving state laws a national effect.

“What matters is whether Republicans decide to make it a big issue. It takes a two-thirds vote to pass it and right now they don’t have two-thirds. I’m guessing Democrats wouldn’t go along with it. Realistically, I don’t think it would happen this year or anytime soon,” said Siegel.