Anti-Gay Amendment Fails in Senate

Democrats Kill Measure They Derided As Presidential Politicking

Despite a presidential endorsement and a slim Republican majority, the Federal Marriage Amendment stalled in the Senate on Wednesday when proponents only mustered 48 votes required to end floor debate, known as invoking cloture, 12 votes short of the amount required by Senate rules before measures go on to a final floor vote.

The vote was virtually a party line decision, with only three Democrats, Zel Miller of Georgia, West Virginia’s Robert Byrd, and Ben Nelson of Nebraska, supporting the effort to move the amendment forward. Sens. John Kerry Kerry, the presumptive Democratic presidential nominee, and John Edwards, his vice presidential choice, did not leave the campaign trail to return for the vote. Neither senator supports same-sex marriage, but each favors civil unions and said he would vote against the amendment if it received a straight up or down vote.

Had its supporters succeeded in ending debate, the measure’s passage would then have needed 67 votes, or a two-thirds majority as required by the Constitution, before being sent on the House of Representatives.

Many of the amendment’s opponents derided as political maneuvering the decision of the majority leader, Sen. Bill Frist, of Tennessee, to schedule the vote four months before a presidential election and just two weeks before Democrats convene in Boston for their convention to officially nominate Kerry and Edwards.

Sen. Patrick Leahy of Vermont, the ranking Democrat on the Judiciary Committee, who has waged a protracted fight against the amendment’s passage, was one of the last Democrats to speak against the measure on Wednesday morning before the cloture vote was held. Referring to Republican attempts to expedite the amendment’s passage during a political season, Leahy said, “They cut procedural corners on the Senate floor. They scheduled this debate to maximize crass political considerations. Their handling of this constitutional amendment has boiled down to pure politics, at the expense of gay and lesbian Americans and the families and friends and co-workers who care about them.”

Last Friday, Senate Democrats said that they would not oppose any Republican proposal to limit debate if no additional changes were made to the amendment proposal.

However, on Tuesday, a proposal was made to change the original wording of the Allard Amendment, as the measure is known, named for its prime sponsor, Sen. Wayne Allard, a Colorado Republican. The original amendment read: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.”

The proposed change to the amendment would have removed the second sentence, an option considered as possibly gaining the support of wavering senators. Critics of the amendment contended that the second sentence would not only ban same-sex marriage, but potentially all forms of civil unions and domestic partnership arrangements that many gay and lesbian couples already use to create legal bonds with each other. The effort to change the amendment caused the Democrats to drop their pledge not to oppose limiting debate.

During the several days of debate that preceded the cloture vote, some conservative senators voiced reluctance to support the amendment for fear that it overrode traditional states’ rights.

“It usurps from the states a fundamental authority they’ve always possessed and imposes a federal remedy for a problem that most states don’t believe confronts them,” Sen. John McCain, an Arizona Republican, said on Tuesday, arguing that the amendment was antithetical to core principles of the Republican Party.

Last Friday, Allard attempted to set the tone for the floor debate by declaring, “The union of a man and a woman has been the foundation of every civilization in human history. This definition of marriage crosses all bounds of race, religion, culture, political party, ideology, and ethnicity. It is not about politics or discrimination.”

However, many Democratic senators rose to denounce the amendment, with some calling the measure a form of “gay-bashing.”

Senators in favor of the amendment justified their support by citing concerns that gay marriage would lead to the dissolution of America’s families. Many carefully disavowed any claims that they were acting in a discriminatory fashion.

“It’s not easy standing up to this popular culture that we live in. Marriage will become a social convention that will have no meaning and therefore we will be without it,” said Rick Santorum, Republican senator from Pennsylvania who was the floor manger for the amendment. “It has been proven again and again that families with a mother and a father are best for children.”

Referring to the potential for same-sex couples married in Massachusetts suing their home states for recognition of their marriages, Republican Sen. Kay Hutchison Bailey of Texas called same-sex marriage, “Not only an attack on traditional marriage, but also on our democratic system.” She said that courts will soon override the decisions of state legislatures that have chosen not to recognize same-sex marriage, and that “judges acting as legislators can only be stopped by the Constitution.”

The refrain of activist judges usurping the will of the people was a refrain heard often on the Senate floor, that activist judges had decided to rewrite the constitution by allowing same-sex marriage in Massachusetts.

Sen. Orrin Hatch (R-Ut.) said that the recent U.S. Supreme Court decision in the Lawrence case, which found a liberty right to private gay sexual behavior, meant that same-sex marriage in all 50 states was impossible to stop unless forbidden in the Constitution.

On Tuesday, opponents of the amendment focused their comments in part on their view that the effort was a waste of time meant to distract from more important issues facing the country that might be politically problematic for Pres. George W. Bush.

Sen. Edward Kennedy, the Massachusetts Democrat, citing the war in Iraq, rising college tuition, and federal budget deficits said, “that it couldn’t be clearer that the Republican leadership has brought up this proposal for pure politics, not for its underlying merits.” He continued that the debate was meant only to gather support among the “rabid, reactionary, religious right.”

Sen. Frank Lautenberg, a New Jersey Democrat, sharply challenged the contentions of amendment supporters that they were not motivated by discrimination. “The proposed constitutional amendment before us today would etch the markings of intolerance, discrimination, and bigotry into a document that is based on the enduring truth that everyone is created equal,” Lautenberg said. “This is gay-bashing, plain and simple.”

Kennedy pointed to the children living in families headed by gay and lesbian couples in explaining his opposition to the FMA. “More and more children across the country today have same-sex parents,” Kennedy said. “What does it do to these children and their well-being when the president of the United States and the Senate Republican leadership say their parents are second-class Americans?”

The first three days of the week were marked by full court presses from both sides of the amendment issue, laying out the major lines of division.

On Monday Senate Majority Leader Bill Frist, a Tennessee Republican, held a press conference with the Alliance for Marriage, the U.S. Conference of Bishops, and African American leaders Roy Innis and Walter Fauntroy, urging his colleagues to support the amendment.

“We intend to rebuild the culture of intact families,” Matt Daniels, president of the conservative Alliance for Marriage said at the conference. “Most Americans don’t want their kids to grow up in a society where marriage has been struck down by the courts.” Daniels presented several boxes full of what he said were letters urging the Senate to pass the amendment.

The conservative Family Research Council said that by last Friday it had collected 1.4 million signatures on a petition to “preserve traditional marriage” and claimed another 1 million additional signatures this week.

Planet Out reported this week that Patrick Guerriero, the president of the gay Log Cabin Republicans, sent a letter to Frist, asking why the Senate is debating the amendment when more important matters need consideration. Guerriero referred to Frist’s admission to Roll Call on July 12, the Capitol Hill newspaper, that the amendment lacked the 67 votes for passage. “The question becomes why, at a time when our nation and our party ought to be coming together, would you choose to divide us on a vote you already know will fail?” Guerriero’s letter said. “There’s a one-word answer to that question—politics.”

On Tuesday, three Democratic senators—Hillary Rodham Clinton of New York, John Corzine of New Jersey, and Barbara Boxer of California—held a press conference to urge their colleagues to reject the amendment., a liberal grass-roots Internet organization that claims more than 2 million activist members, sent out an e-mail urging its supporters to sign a petition opposing the amedment. The group also bought television time for ads saying Bush was using the issue of same-sex marriage to to simply move the political discussion away from the economy and Iraq.

By Wednesday afternoon, the question had become why the amendment proposal fared so poorly, even among some conservative lawmakers close to the White House.

“They thought they had a shoo-in, and instead bit off more than they could chew,” said Ron Schlittler, interim executive director of Parents and Friends of Lesbians and Gays (PFLAG). “The Bush administration didn’t realize that many members of Congress have family and friends who are gay and lesbian, and don’t want to write this kind of discrimination into the Constitution. Plus most people are in favor of legally recognizing gay relationships in some way.”

Peter Montgomery, the press director for the left-leaning People for the American Way, said, “People are rightly hesitant to amend the Constitution, even Republicans who are generally not in favor of gay marriages.” He added that, “the timing of the vote is obviously meant to be politically divisive because there is no reason for it. There is no current challenge to [the Defense of Marriage Act], no cases pending before the Supreme Court. Their claim that courts are about to rewrite the definition is false. It is meant to distract people from the war and the economy.”

Significantly, the conservative Cato Institute echoed that view. “There may be some Republicans who are uncomfortable with the blatant political exploitation of this issue,” said Roger Pilon, the group’s director of constitutional studies. “If you look at the timing—staging it this week, in an election year when it’s known there aren’t the votes for it, it’s obviously a political move.” Pilon also agreed that the amendment rankled the political beliefs of conservatives and liberals alike.

“For some people it’s a matter of principle, a reluctance to amend the Constitution. For others it’s a live-and-let-live attitude, in that we don’t impose our beliefs on anyone,” he said.

The House Judiciary Committee scheduled a hearing for Wednesday on a measure to deny Federal courts any jurisdiction over the part of the Defense of Marriage Act (DOMA) that defines marriage as a union between a man and a woman, so that no suit brought in federal court might override this definition.

DOMA was passed in 1996 when it appeared Hawaii might legalize same-sex marriage. The law allows states the right to refuse recognition of same-sex marriages performed in other states and also bars the federal government from recognizing same-sex marriages.

According to Rep. Tammy Baldwin, a Wisconsin Democrat on the Judiciary Committee, who is a lesbian, the House is also considering an attachment to the District of Columbia appropriations bill that would ban the city from recognizing same-sex marriages. Frist stated that the Senate would bring up the Federal Marriage Amendment again next year.

The same marriage amendment is pending in the House and Baldwin said Republicans have promised to take it up before the November presidential election.

We also publish: