Creating Fire Where There Is No Smoke

Creating Fire Where There Is No Smoke

June 6, 2006

The President and his right-wing supporters stepped up their call for passing the Marriage Protection Amendment yesterday, declaring that marriage is "under attack" by "activist judges." The federal amendment would make history by being the first to write discrimination into the U.S. Constitution by banning gay marriage. The federal marriage amendment (FMA) will "remove the issue from the democratic process (PDF) by preventing states from allowing same-sex marriage if they choose." The constitutional amendment has a slim to none chance of passing — even conservatives are calling it nothing more than a political ploy. But the right wing continues to push this issue as though it were the most pressing issue facing America today (certainly not the war, gas prices or immigration).

• Americans do not overwhelmingly back a constitutional ban on gay marriage. President Bush and his allies would have you believe that the overwhelming majority of Americans support the FMA. Truth is the majority of the American people don't stand with Bush on this issue. Only 42 percent of the American public supports amending the Constitution to ban same-sex marriage; 51 percent believe the decision should be left to the states. In another poll released yesterday by the Center for American Progress, just three percent of respondents cited homosexuality when asked to name America's most serious moral crisis.
  
  
• Activist judges are not threatening traditional marriage. Bush stated that state legislatures are being "thwarted by activist judges who are overturning the express will of their people" on gay marriage. Despite the right's inflammatory rhetoric, the "'threat' from courts is more imagined than real." (PDF) Court order has resulted in just one of 50 states recognizing same-sex marriage. Forty-five states, on the other hand, have barred same-sex marriage under state statutes or state constitutional amendments. Nebraska is the only state where a federal judge struck down a same-sex marriage ban, but it was overturned because it banned all same-sex relationships and not just same-sex marriage. The decision did not order the state to recognize same-sex marriages. And the pending cases do not constitute a serious risk. Law Professor Dale Carpenter points out: "Anyone with a printer and enough money for a filing fee can file a lawsuit. ... But winning is a very different matter." (PDF)
  
  
• The Defense of Marriage Act is not in jeopardy. In 1996, Congress approved the Defense of Marriage Act (DOMA), which "defines marriage as a legal union between one man and one woman for purposes of all federal laws" and ensures that the decision whether to recognize same-sex marriage is left up to each individual state. The argument that DOMA is in jeopardy is false (President Bush even noted so before he flip flopped on the issue of the FMA). No federal or state court has found DOMA unconstitutional (PDF), and all of the courts that have considered it have upheld it. And even Bob Barr, former Republican congressman from Georgia and author of DOMA, has spoken out against the amendment: "If we begin to treat the Constitution as our personal sandbox, in which to build and destroy castles as we please, we risk diluting the grandeur of having a Constitution in the first place."