The push by conservative Congress members and right-wing political activists to amend the US Constitution to permanently ban same-sex marriage -“ and perhaps civil unions and domestic partnerships -“ could inspire a burst of gay activism to rival such gay milestones as Stonewall and ACT UP, activists and commentators say.
They’d better think long and hard before they push this because they’re going to have a war on their hands, Pulitzer Prize-winning playwright Tony Kushner told The New York Times. A real movement for an amendment will electrify this community and bring about an entire new generation of dissent and civil disobedience.
The fight against the Federal Marriage Amendment, as this ugly piece of work is nicknamed, is the Gettysburg of the gay rights movement, says syndicated commentator Ann Rostow. It’s all or nothing. Because, if the right to marry is pre-empted by this constitutional travesty, our life partnerships will remain second-class, morally suspect, extra-legal, unrecognised and unequal for the indefinite future.
The version of the amendment that has been introduced in Congress reads: Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.
The phrase the legal incidents thereof leads some observers to fear the amendment could not only ban same-sex marriage but may be interpreted by courts as interfering with civil-union and domestic-partnership laws as well. Other observers, however, say the use of the word require leaves states free to extend spousal rights to same-sex couples although they can’t be required by a constitution or law to do so.
Amending the US Constitution is difficult. It requires a two-thirds yes vote in the House of Representatives and the Senate, and ratification by at least 38 state legislatures. But uncertainty over whether anti-gay forces could scale those hurdles, activists say, is no reason to ignore the threat -“ because the consequences of the amendment’s passage could be dire.
The right says that our LGBT movement is engaged in a war to bring down Judeo-Christian civilization, says National Gay and Lesbian Task Force Executive Director Matt Foreman. I agree with Tony Kushner that they are the ones imposing war on us, and the Constitutional amendment is the line in the sand. If that gets crossed, there will be people getting arrested in the offices of the people who are supporting this amendment. There will be marches in the streets. We will be calling these people the bigots that they are. To date there has been no political consequence to elected officials getting behind this heinous piece of legislation but once this thing actually starts moving, we definitely have it in us to make this ugly. I, for one, will be right there. The Task Force will be right there.
Foreman says the amendment drive will only take off if president George Bush explicitly pushes it.
It will not go unless Bush pulls the trigger, he says. And George Bush will pull the trigger if they determine it will help him solidify his base and provide a useful wedge. It’s impossible to predict. What I do know for sure is that this is being focus-grouped to death to determine how the president can use it for his own re-election needs.
Foreman believes that if Bush pulls the trigger, the amendment will certainly pass the House of Representatives and come very close to passing in the Senate.
We need to lobby our members of Congress, he says. We need to speak candidly to our families and friends and associates and ask them to contact their elected representatives. What the organized movement can do is work much better together and drop our institutional egos to confront and defeat the challenges that are cropping up all over the country.
Lawyer Evan Wolfson, executive director of Freedom To Marry, is among the activists who feel the amendment also imperils domestic-partnership and civil-union laws.
The amendment is written to put a thumb on the scale against any measure of protection for gay families or unmarried non-gay people’s families, and the groups that are circulating this attack on the Constitution have a clear track record of saying one thing and then doing another when it comes to their antigay agenda, Wolfson says. California provides dramatic evidence. When pushing the Knight Initiative, [antigay activists] claimed it was just to bar marriage not domestic partnership. Now, these same groups are in court in California seeking to overturn AB205 which expanded the spousal rights available to registered partners but does not provide for marriage.
Wolfson says the gay movement faces three key tasks.
First, we must secure the civil-marriage licenses we have won in Massachusetts, he says. We need to get resources there to support the groups, beginning with Gay and Lesbian Advocates and Defenders, to fight the politicians who are not following the law. Second, we need to repel attacks, including the Constitutional amendment; other hateful, discriminatory attacks in Congress; and attacks in state legislatures. Third, we need to enlist more voices into this public debate. As the middle moves toward us, they need to hear more diverse messengers delivering the message of marriage equality.
Jon Davidson, senior counsel at Lambda Legal, agrees with Wolfson the Constitutional amendment, as currently written, endangers domestic-partnership statutes of all sorts.
The second sentence will nullify civil-unions laws. You wouldn’t be able to use the civil-unions law in Vermont, for example, to require that you be given whatever spousal rights might be in question. Davidson says.
It doesn’t prohibit a state from voluntarily giving benefits, but anybody who doesn’t want to do it voluntarily doesn’t have to. Legislatures couldn’t require that the benefits be granted.
According to a New York Times and CBS News poll from 21 December 55 percent of Americans support amending the Constitution to permanently ban same-sex marriage. Forty percent oppose the idea.
Pollsters questioned 1,057 Americans by telephone between 10 December and 13 December. The Times noted, Responses about gay rights tend to be influenced somewhat by the wording of the questions.