Posted on Nov 26, 2003 | by Michael Foust
Editor's note: This is the second story in a series examining the national debate over same-sex "marriage." The series will appear in Baptist Press each week.
Updated April 8, 2004
NASHVILLE, Tenn. (BP)--Could the controversial Massachusetts court decision legalizing same-sex "marriage" spread to other states, eventually becoming legal nationwide?
The answer depends on who is asked -- and that uncertainty has conservatives concerned. Homosexual activists and their supporters have a legal strategy for winning the nationwide battle over same-sex "marriage." The question is whether it will succeed.
The plan is a two-step approach: legalizing same-sex "marriage" in one state and then suing in federal court to have those marriage licenses recognized in other states.
So far, the strategy is working. The decision by the Massachusetts Supreme Judicial Court legalizing same-sex "marriage" was a monumental legal victory for homosexual couples -- rivaled only by the U.S. Supreme Court's Lawrence v. Texas decision in June striking down anti-sodomy bans.
Once marriage licenses are awarded to same-sex couples in Massachusetts -- the court stayed its decision for 180 days -- lawsuits will follow, conservatives warn. The court’s ruling is scheduled to take effect in mid-May.
"This will inevitably lead to lawsuits challenging marriage in every state in the nation, and time is not on our side," Matt Daniels, president of the Alliance for Marriage, told Baptist Press. "We have to move quickly, and we have to immediately recognize that apart from the Federal Marriage Amendment, the courts are going to destroy marriage as we've understood it for millennia."
The Federal Marriage Amendment would add language to the Constitution protecting the traditional definition of marriage, thus banning same-sex “marriage.” Its passage would render the court ruling in Massachusetts irrelevant.
It is needed, conservatives say, because current law won't hold up in federal court. While President Clinton in 1996 signed the Defense of Marriage Act protecting states from being forced to recognize another state's same-sex "marriage," homosexual activists want to see it ruled unconstitutional.
"The proponents of this have already publicly stated that their next step is ... to have homosexuals from other states marry in Massachusetts go home, seek to have their relationship recognized, and if not recognized take legal action," Family Research Council President Tony Perkins told BP.
Last summer Kevin Cathcart, executive director of the homosexual activist group Lambda Legal, outlined his legal strategy to a reporter for Newsweek magazine's online edition. He said he wants to see DOMA overturned.
"We need a state court victory [allowing same-sex 'marriage'] before we see any action on the federal level," he said, months before the Massachusetts ruling. "We will have to challenge the federal Defense of Marriage Act but we are not in a position to do that until [homosexuals] are [actually] married...."
The Boston Bar Association made a similar argument when it filed legal papers supporting the same-sex couples in the Massachusetts case.
"[O]nly extending the right to marry to same sex couples can secure the full range of legal benefits and responsibilities established to protect spouses and families in the Commonwealth and beyond," it argued.
A footnote at the bottom of the page was even more direct: "It is only with 'marriage' that Massachusetts citizens can request the Congress to repeal this law [DOMA], or challenge its constitutionality."
Lawyers representing the defense argued that a pro-same-sex "marriage" ruling would lead to conflicts between the states, because a same-sex "marriage" in one state would not be recognized in the other 49 states. But the court rejected that argument, saying that it should not prevent the court "from according Massachusetts residents the full measure of protection available under the Massachusetts Constitution."
Because the decision was based solely on the Massachusetts constitution, it cannot be appealed to the U.S. Supreme Court, legal experts say. It is only when a federal question arises -- such as whether the Defense of Marriage Act is unconstitutional -- that it can be taken to federal court, they say.
Glen Lavy, an attorney with the Alliance Defense Fund, a Christian legal organization, said that in theory current law should be adequate in defending the Defense of Marriage Act. Of course, Lavy said, current law should have been adequate in turning back the request to legalize same-sex "marriage."
A challenge to DOMA "cannot succeed based on legal precedent," Lavy told Baptist Press. "ut when courts say that they can redefine terms, when they say that evolving moral standards change the law, then we don't have a system of laws. We have a system that's ruled by the people in black robes."
Same-sex "marriage" proponents will focus much of their legal strategy on a specific interpretation of the "full faith and credit" clause in Article IV of the U.S. Constitution. The article states, in part: "Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State."
Lawyers seeking same-sex "marriage" legalization argue that the full faith and credit clause requires all states to recognize a marriage license -- and the rights granted therein -- issued to a same-sex couple.
Lambda Legal argued before the Defense of Marriage Act was signed into law that it was unconstitutional. In a 1996 statement, the organization argued that the full faith and credit clause is "intended to promote national unity" and assure that people "can move throughout the country without being stripped of their legal rights." The Defense of Marriage Acts is unconstitutional because it denies those rights, Lambda Legal argued.
Appearing before a Senate subcommittee in March, Nebraska Attorney General Jon Bruning predicted that the federal courts would overturn DOMA. His own state’s defense of marriage act is being challenged before a federal judge.
“[Nebraska’s law] will be struck down by this federal judge,” Bruning said. “He has said so. And I think state statutes face the same risk. So state constitutional amendments [and] state statutes are at risk. Why is federal DOMA not at risk? The only thing that can remain firm is a federal constitutional amendment.”
Bruning, who supports a federal amendment, said America “is heading down a path that will allow the judiciary branch to create a national policy for same-sex marriages.”
Last September, Michael Farris, president of Patrick Henry College in Virginia, told a Senate subcommittee that an increasing number of law review periodicals are taking a DOMA-is-unconstitutional stance.
"It is the dominant view, and I can tell you ... that what's the dominant view in the law reviews today will be the dominant view of the courts in a generation," Farris said. "[But] I don't think we'll have a generation -- I think it will be five years at the most that DOMA would last, if it would last that long."
(BP) photo posted in the BP Photo Library at http://www.bpnews.net. Photo title: MARRIAGE REDEFINED.
For more information about the debate over same-sex "marriage," visit