By David Hinckley
National Alliance for Marriage President Matt Daniels leads the charge for traditional marriage protection in the United States. His objective: a national amendment forever christening marriage as the union between a man and a woman.
Although Congress voted down the Federal Marriage Amendment earlier this year, Daniels and his colleagues are continuing the battle on other fronts, and hope to bring the issue back to Congress.
They received a boost on Election Day, when the landslide victory of 11 state definition-of-marriage amendments revived the issue. The passage both gave supporters ammunition and opened the floodgates for new lawsuits.
“The forces behind this [homosexual marriage] movement are hostile to public opinion and to democracy,” Daniels said. “They are seeking to enforce their will on the nation through the courts.”
Only days after the election, groups began filing lawsuits contesting the newly passed amendments, saying they discriminate against homosexuals. Other amendments have been contested or thrown out for more technical reasons.
So far, the Utah amendment, which passed on Nov. 2, has enjoyed relative security. Dani Eyer, executive director of the Utah American Civil Liberties Union, said the group has no plans to challenge the amendment before it becomes law.
But she made no promises for 2005. Eyer predicted the first lawsuits would arise over second-sentence issues.
The second sentence, a pre-election hot-topic, restricts the legislature from granting any union “the same or substantially equivalent legal effect” as marriage.
Still, Eyer said she reserved hope that “somewhere, somehow” lawsuits would overturn state marriage amendments on grounds of discrimination.
But Americans may not be finished making their statements.
BYU law professor Richard Wilkins said the 11 marriage amendments that passed earlier this month will probably not be the last. He said legislators from more than 20 other states contacted him and others after the elections for legal advice in drafting more state marriage amendments.
A Texas lawmaker last week filed a state amendment for discussion next year, and Idaho legislators have also begun discussing possibilities for their own amendment.
But if proponents of same-sex marriage get their way, as Daniels predicted, both present and future amendments may all be thrown out.
A district judge threw out Louisiana”s amendment last month on a technicality. Additional lawsuits have been filed against the marriage amendments passed in both Oklahoma and Georgia, and Nebraska is facing a lawsuit against its existing marriage amendment. Groups are also pursuing high-profile cases in Florida and California, where no amendments have been adopted but state law prohibit gay marriage.
At BYU, Wilkins expressed concern over how such court cases could end. He said the federal courts were likely to “impose” same-sex marriage when such cases are brought before them.
Wilkins and Daniels, agreed an underlying problem comes from a Supreme Court case last year that struck down a Texas anti-sodomy law.
“The court said that at the heart of liberty is the right of every adult to determine for himself or herself the meaning of life and the mystery of the universe; now, that”s a poem,” Wilkins said. “But the court applied that poem to say states cannot demean consensual sexual relationships.”
According to Wilkins, the Massachusetts Supreme Court used that precedent in November to declare homosexuals must be allowed to marry. Federal courts could use the same reasoning to strike down amendments around the nation that prohibit homosexual marriage.
That would almost certainly bring the issue back to the Supreme Court.
“That could be a very confusing opinion,” Wilkins said.
In the anti-sodomy case, decided by a 6-3 majority, Justices Sandra Day O”Connor and Anthony Kennedy included footnotes in the majority opinion, saying they did not believe the issue affected the definition of marriage. So if all other things remained equal, the Supreme Court would hypothetically uphold the amendments.
But despite that small assurance, Wilkins said he remained concerned about the direction the U.S. court system is headed.
“We are, in a sense, having a dialogue with the [courts],” Wilkins said. “Ultimately, people need to take this moment in time to shake the judges down to their roots.”
And messages are flying. Wilkins said the overwhelming passage of marriage amendments in 11 states this month “sends a pretty strong message.”
In addition, some states are speaking out more explicitly.
Alabama has adopted a resolution urging Congress to pass a national amendment defining marriage as between a man and a woman, and 13 other states have considered similar resolutions. A clearly worded federal amendment would put the issue beyond the control of judges.
The amendment would require passage by a two-thirds majority in both houses of Congress, then ratification by three-quarters of the states.
Daniels called the fight for state amendments a “dress rehearsal” for the ratification battle.
The national amendment failed when attempted earlier this year, but The Washington Times reported Karl Rove, senior White House political adviser, as saying President Bush will continue to push for its passage.
“The president won because of the marriage issue,” Daniels said. “We positioned the issue in advance of the election.”
He said the elections “softened the ground” for the amendment”s next attempt.
“It”s a lot harder to push through a marriage amendment than to try to impose our will through the courts,” Daniels said, “but our chances have never been better.”