The House Judiciary subcommittee on the Constitution held a hearing on language of the Federal Marriage Amendment (FMA) May 13, where proponents and opponents recycled arguments each had made previously.
Rep. Marilyn Musgrave, R-Colo., the lead sponsor of the FMA, defended it 'only as the last resort.' She claimed 'the Constitution of the United States of America is on the verge of being amended, the only choice is whether it is by the voters or the courts.'
Robert Bork, the failed conservative nominee to the Supreme Court, echoed that sentiment. He asserted, 'We are going to have a nationwide rule' on same-sex marriage, either because of the courts or enactment of the FMA.
He said the second sentence of the FMA, which he helped draft, 'Was intended to say that the courts should not require civil unions, only legislatures can do that ... . We have no intention of trying to prevent any democratically enacted form of civil unions.' He supported modifications that have been made to the Senate version of the FMA but not yet to the House measure.
'The amendment has been wildly under-described,' openly gay Congressman Barney Frank, D-Mass., began in his testimony before the committee. It is not about stopping activist judges, 'This amendment says nobody in a state can enact same-sex marriage,' not a judge, not the legislature, not the voters in a referendum.
He reminded the committee of the 'predictions that chaos will ensue' from social conservatives any time antidiscrimination measures are proposed. 'None of those are ever true.' Most explicitly, those predictions made prior to the enactment of civil unions in Vermont have not come to pass.
Frank made his own predictions with regard to the outcome of gay marriage in Massachusetts. 'It will have an effect on those people who choose to get married, and it will have no effect on those people who choose not to.'
'By this time next year, litigation will be in suit in most states challenging the constitutionality of the Defense of Marriage Act (DOMA),' predicted Jay Sekulow with the American Center for Law and Justice. 'I would not like to let the institution of marriage rest upon the U.S. Supreme Court.'
'Unless the Court steps back, because it feels the public outrage, I think DOMA is an absolute dead letter on constitutional grounds,' Bork said. 'I suspect the vote against DOMA would be 6-3; I don't see any prospect of saving it.'
Rep Jerrold Nadler, D-New York, pressed Bork on the powers of the judiciary. Bork replied, 'Nobody wants to dispense with Marbury vs. Madison. Of course judges will have the power to override legislation that is unconstitutional. The problem arises when judges begin to depart from the Constitution and make up their own idea of the Constitution.'
Nadler asked about rights not explicitly in the Constitution that the Court has found. They include the right to marry and to bring up their children, 'Was the Court wrong to discover these rights?' Bork said he liked many of those decisions made prior to 1937.
Spencer Bachus, R-Ala., raised the latest conservative bugaboo, the cost of equality associated with same-sex marriage. He ticked off a list of federal benefits and said extending these to gay couples will 'just break the bank ... . It will cost billions of dollars.'
Rep. Musgrave said they haven't been able to have that discussion. Rep. Frank reminded the committee that judge Bork earlier had said he didn't believe that many gays would end up getting married, so the cost would be less. Furthermore, passing the FMA would preclude that debate that Musgrave claims she wants.
Rep. Tammy Baldwin, D-Wisc., the only open lesbian in Congress, told the story of a lesbian couple in Vermont raising a child named Trevor. One of the mothers stayed at home to care for the child. Then the working mom was struck and killed by a car. She asked, 'What is the cost to Trevor that he can't collect Social Security benefits for a lost parent? We have to weigh those costs too.'
'I'm concerned about judge-made law,' said Rep. Tom Feeney, R-Fla. He asked, what is Congress' remedy for legislating from the bench?
'In the case of a blatantly unconstitutional decision, there is impeachment,' said Frank. He continued, 'This amendment is not a judicial restraint amendment, it's a specific subject amendment that says no one—no referendum, no state legislature—can allow same-sex marriage.'
The committee will have at least two more hearings in this area.
Social conservatives opposed to same-sex marriage have not had much success recruiting leaders of the Black civil-rights movement to their cause, but they have had some success in recruiting ministers. The Latino clergy has offered less fertile ground for those efforts. The reasons why are tied in part to the differing role and structure of the church within those communities.
'There is a different kind of religious leadership structure between Catholics and Protestants,' says Joseph M. Palacios, SJ, a Roman Catholic priest and professor of sociology at Georgetown University. 'The vast majority of Catholics don't have a tradition of spokespersons for religious and social issues as the Black churches do.'
Evangelical pastors within the Latino community 'are utilizing the methods of their Black counterparts, saying that they represent the average people,' he said. They are the ones that social conservatives have had some success recruiting to support FMA.
But 63% of Latinos in the United States are Roman Catholic. Rev. Palacios says a typical Latino Roman Catholic parish in Los Angeles has about 6,000 families, some 25-30,000 people in it. 'A large protestant church doesn't come near that.'
Martin Ornelas-Quintero, executive director of LLEGO, calls evangelical pastors who are supporting the FMA 'the fringe of the fringe' who do not truly represent the Latino community.
Many people say that Latinos in the U.S. have traditional or conservative values. But Rev. Palacios' study of 2000 census data contradicts that view.
Rev. Palacios sees 'a subtle lobby effort' on the part of pro-gay groups to minimize the role of the Catholic Church in the debate over the FMA. 'I think there is a kind of quid pro quo going on here: We won't go after the Church, if the Church doesn't go after us.'