Prenuptial disagreement

If Matt Daniels believes one thing about marching into a political battle, it's that "rainbow coalitions" aren't just for liberal causes. Black and white, Asian and Latino, Protestant and Catholic, Muslim and Jew-every race and creed is represented when he calls the cameras and reporters to a Washington press conference.

Mr. Daniels is executive director of the Alliance for Marriage (AFM), and last month he arrived on Capitol Hill with a diverse assembly of 50 church officials who support his Federal Marriage Amendment, a simple addition of two sentences to the Constitution of the United States: "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."

He knows that to many Americans, it still sounds absurd and unnecessary to edit Jefferson and Madison with a paragraph that asserts something like the sky is blue or cows make milk. But in the second decade of the homosexual campaign to make the word marriage mean any arrangement of two people living together, it's not unnecessary. It's wildly controversial.

Little else in media and political circles has the same sense of historical inevitability as the notion that homosexuality is the next frontier for a "civil rights" revolution. Anyone who stands in its way should be prepared to be hustled away by hyperbole. Standing outside the AFM press conference, two staffers from the American Civil Liberties Union pass out press releases likening the amendment to a "nuclear bomb" that would "wipe out every single law protecting gay and lesbian families and other unmarried couples."

Last July, when AFM first announced its proposed amendment, one of its supporters, Rev. Walter Fauntroy, a Baptist minister and former D.C. delegate to the House of Representatives, received a flood of angry and threatening phone calls after local gay activists sent around his home phone number and asked people to call him ("Hanging up harassment," WORLD, Sept. 8, 2001).

AFM arranged to have its amendment introduced in the House of Representatives with a bipartisan flourish by Rep. Ronnie Shows, a Mississippi Democrat, one of three Democrats and three Republicans on board. (Since then, five more Republicans and GOP-leaning independent Virgil Goode have joined the co-sponsors' list.)

But even if the amendment appears simple and straightforward, its approval will not come easily. Constitutional amendments require a two-thirds vote of both the House and Senate (but no action on the part of the president), and then ratification by at least 38 of the 50 states. This procedural high bar has prevented willy-nilly amending: Only 17 amendments have been added to the Constitution since the 10 amendments of the Bill of Rights were adopted in 1791.

In the House, the amendment is still in its germinal stages. It has been sent to the House Judiciary Committee, but has not yet been scheduled for a hearing. Its prospects in a Democrat-controlled Senate are much bleaker, at least this year. Senate Majority Leader Tom Daschle doesn't bring anything to the floor without the assent of his liberal bloc. Rep. Shows acknowledges the difficulty, but suggests "you can't really tell what's going to happen six months from now. We just do the best we can."

The White House is typically quiet. Spokesman Ari Fleischer, rarely eager to answer hypothetical questions about measures that have yet to pass Congress, dismissed an amendment question by citing the Defense of Marriage Act, approved by Congress in 1996: "All I know is, that's already law of the land, signed by President Clinton, and the president supports the law of the land in this case." (The DOMA is merely a federal law, susceptible in the absence of a constitutional amendment to a challenge in the courts.)

Of White House indifference, Mr. Daniels says: "We have not asked for them to cheer for this. The president doesn't play a role in the constitutional amendment process."

The homosexual "marriage" campaign began on Dec. 17, 1990, when three couples in Hawaii attempted to secure marriage licenses. When they were refused, they filed suit in May 1991 against the state's department of health. A judge declared in favor of the three couples in 1993, suggesting they were denied equal protection under the state's constitution. As the Hawaii ruling approached finality in 1996, 16 state legislatures quickly passed laws that would prevent gay couples from using the full faith and credit clause of Article IV of the U.S. Constitution to argue that a marriage recognized in Hawaii should be recognized in other states. (More than a dozen other states have passed similar laws since then.)

What followed in the next few years was a pattern of judicial activism (courts discovering in state constitutions the right for homosexuals to marry), followed by popular revolt (voters and politicians amending the laws and constitutions). Voters in Hawaii and Alaska both responded in the fall of 1998 by adding defense-of-marriage amendments to their state constitutions by overwhelming margins. In 2000, Vermont's highest court pushed the legislature into creating "civil unions," which weren't "marriages" technically, but carried most of the same legal benefits. In response, Vermont voters removed 11 civil-union backers in the Vermont House, and left the Senate with only a two-seat majority in favor of civil unions. The House has passed a bill repealing civil unions, and both sides will be fighting for Senate control this fall.

Amendment backers take comfort in the argument that judges are proposing, and the people are disposing. But the marriage amendment's difficult path to passage includes opposition from several major pro-family groups, such as Concerned Women for America and the Family Research Council.

What Mr. Daniels considers the amendment's strength-it doesn't stop a state like Vermont from creating "civil unions"; it merely protects states from being forced to recognize gay unions from other states-others define as its weakness. They argue that if you preserve the word marriage for its traditional definition, but allow "civil unions" that accomplish a similar objective, what have you won? FRC president Ken Connor wants to be diplomatic, but he ends up sounding blunt: "If you back a counterfeit solution, it depreciates the value of the real thing."

Mr. Connor insists his group respects AFM's intentions, but "the Constitution is not the problem. That's implied when you seek an amendment. The problem is activist judges who don't respect its language. We shouldn't kid ourselves that these judges won't be willing to misconstrue future language."

Both sides of the pro-family movement say they have their feet firmly planted in political reality. Mr. Connor says that the fight for an amendment is the wrong fight, wasting precious resources of money and manpower, while activist judges will conclude that "those words are wax." Mr. Daniels counters his solution is "95 percent" of what marriage defenders want, so "are we interested in striking a pose, or are we interested in winning?"

For all the talk in Washington, the future of the homosexual marriage campaign still rests mostly in the states. Gay activists are touting a bill Connecticut's House of Representatives passed on May 3 that would grant certain legal privileges, but not marriage, to gay couples. Seven couples in Massachusetts are appealing a May 8 court decision that rejects their application for marriage licenses. Pro-gay California legislators pulled back AB 1338, a gay marriage bill, earlier this year, but both sides expect that fight to restart. Vermont's laws will depend on this fall's election returns.

Regardless of the outcomes, opponents of same-sex marriage of all stripes know the stakes.

So do homosexuals. A late April Zogby-GLCensus Partners poll of over 1,500 self-identified homosexuals, bisexuals, and transsexuals found that the top goal of the gay movement was the legal recognition of same-sex marriage: 47 percent of respondents listed it as the top goal, and 83 percent selected it as one of the top three goals. By contrast, only 16 percent picked employment anti-discrimination laws as the top goal.

Mr. Daniels says his amendment might not seem necessary today, but courts will make it crucial tomorrow. He argues that while many politicians don't want to address homosexuality, the law has the power to change culture. "The highest moral authority for many is human law, not a transcendent authority. If it's legal, it must be moral." He thinks that's not a fight you can dismiss until later.