Canadian court approves homosexual ‘marriage’

NASHVILLE, Tenn. (BP)—America’s social conservatives fear that a cultural battle is on the horizon, the likes of which could rival even the debate over abortion.

Sometime this summer, they say, the highest state court in Massachusetts may make homosexual “marriage” legal, leading to a cultural war over the definition of marriage that could impact Senate judicial nomination battles, the Constitution itself and next year’s presidential election.

Canada, they say, is a case in point.

On June 10 the Ontario Appeal Court changed the definition of marriage from a union of one man and one woman to “the voluntary union for life of two persons to the exclusion of all others,” saying that Canada’s definition of marriage violated the country’s Charter of Rights and Freedoms.

Almost instantly, homosexual couples across the province held wedding ceremonies, claiming that Canada’s cultural battle over homosexual “marriage” was finally over. It is not known if the ruling will be appealed, although The Boston Globe reported that Prime Minister Jean Chretien’s government seemed hesitant to do so.

Canada’s ruling is sure to add to what is already a growing debate in the United States over the controversial issue.

If the Massachusetts high court rules for homosexual “marriage,” American social conservatives will use the rulings as evidence of liberal judges run amok, pro-family forces will push for a constitutional amendment banning homosexual “marriage” and the 2004 presidential nominees will be asked to state their beliefs on the controversial issue.

The Massachusetts case is part of the reason the Federal Marriage Amendment — which would add an amendment to the Constitution defining marriage as solely between a man and a woman — was recently reintroduced in the House of Representatives.

It’s also the impetus behind the Massachusetts legislature’s effort to head off the court and pass a state constitutional amendment against homosexual “marriage.” But the state’s citizens may not back the effort: A Boston Globe/WBZ-TV poll showed that 50 percent of the state’s adults supported allowing homosexual “marriage,” while 44 percent opposed it. Additionally, in a Boston Herald poll, only a third of the state’s voters support a state amendment. Both polls buck nationwide trends showing that a majority of Americans favor an amendment to the U.S. Constitution.

If the plaintiffs in the Massachusetts case win, social conservatives say, homosexuals will flock to the state, get “married” and then sue in their home state for recognition of their Massachusetts license. In Vermont, 85 percent of the state’s homosexual civil unions are by out-of-staters.

ISSUE ‘ABOUT TO EXPLODE’

Alliance for Marriage President Matt Daniels, whose organization backs the Federal Marriage Amendment, predicts the Massachusetts court will rule in favor of homosexual “marriage.” The issue “is about to explode nationally,” he told Baptist Press.

“The minute the Massachusetts court destroys marriage, you will see lawsuits to force this on all the states,” he said.

But even if the Massachusetts high court rules against homosexual “marriage,” Daniels said, cases in other states, including New Jersey, are pending. Robert Knight of the Culture and Family Institute, an affiliate of the Concerned Women for America, said that the New Jersey high court makes Massachusetts’ high court “look downright conservative.” The New Jersey case has yet to make it to the state’s high court, but will likely end up there, Knight said.

“I’ll be stunned if both Massachusetts and New Jersey do not legalize homosexual marriage,” said Richard Land, president of the Southern Baptist Ethics & Religions Commission, which supports the Federal Marriage Amendment. “These are radically liberal courts.”

Technically, the 1996 federal Defense of Marriage Act prohibits the federal government from recognizing same-sex “marriages” and protects states in the event that another state legalizes such a union. With it, states are not required to recognize another state’s homosexual “marriage” laws.

However, if Massachusetts’ court rules for the plaintiffs, homosexual activists will sue to overturn DOMA, Daniels said. To make the legal issue more complicated, homosexual activists could file suit claiming that the U.S. Constitution’s Full Faith and Credit clause requires national recognition of their “marriage.” That clause, found under Article IV, says that “full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State.” Other lawsuits could claim violation of the equal protection clause.

In the coming years, one of two things will happen, Daniels said: “... either we will see marriage destroyed in the name of false constitutional arguments by the courts” or “we are going to see the American people amend the Constitution to protect marriage for future generations.”

CONSERVATIVES SPLIT ON LANGUAGE

Most social conservatives agree that the U.S. Constitution should be amended to protect traditional marriage. The split comes on what the amendment should say. Under the current language of the Federal Marriage Amendment, homosexual “marriage” would be prohibited, although state legislators would still be able to implement civil union laws, such as those in Vermont.

The proposed amendment, introduced in the House of Representatives in May, is only two sentences: “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.”

It has the support of several big names: Focus on the Family’s James Dobson, Prison Fellowship Ministries’ Chuck Colson and former Supreme Court nominee Robert Bork.

Congresswoman Marilyn Musgrave, R.-Colo., is one of the sponsors of the amendment in the House.

“In order to kick [the issue] out of the courts, there needs to be a constitutional amendment,” her spokesman, Guy Short, told Baptist Press. “... We’re going to fight as best we can to make this happen, but there are a lot of hurdles.”

But some social conservatives think a constitutional amendment should be broader and should prohibit civil unions. Randy Thomasson, executive director of the Campaign for California Families, said that “going with half a loaf” means that “it will be much harder to get the other half later” because of the declining culture. Politicians, he said, could use the amendment for cover and say, “We protected marriage already. We’re just doing civil unions.”

“What is really needed is a federal marriage amendment that would protect all the rights and benefits ... of marriage at the federal level, in the courts and for all 50 states,” Thomasson said. “Now is the time to do it right because several years down the line may be too late.”

The proposed amendment “gives the false impression that it does more than it really does,” Knight said. “If it were amended to leave no doubt that no government body could destroy marriage, then it would gain strength and be worth working for,” he told BP.

A REPEAT OF ROE VS. WADE?

Other social conservatives, however, say the language of the amendment is necessary for passage. In a column last year, Focus on the Family’s Glenn Stanton argued that a “do everything” amendment would “end up doing nothing” because it wouldn’t pass.

“However, the [Federal Marriage Amendment] does do something — something very important, strategic and worthy of support,” he wrote. “The FMA would stop the courts from reinterpreting marriage and forcing legislatures to do so, as happened in Vermont. This is no small thing. With the removal of court interference, the battlefield of same-sex unions will be much smaller and more manageable.”

California’s Thomasson counters by pointing to the Federal Defense of Marriage Act, which passed easily and was signed by then President Bill Clinton. Many of those representatives and senators are still in office, he noted. Besides, Thomasson said, federal law supercedes state law in many areas.

But the Alliance for Marriage’s Daniels said that a broadly worded amendment is “both politically and legally flawed” and would have “no political chance of success.” State legislators would not want to give away their existing rights, while some politicians would oppose it on grounds of constitutional principle, Daniels added.

The ERLC’s Land agreed, saying that a broad amendment “can’t pass.”

The proposed amendment, meanwhile, “has a decent chance of passing and being ratified by the required number of states,” he said.

In a Wall Street Journal column, Bork argued for the merits of the current wording of the amendment, saying that any other amendment would “be doomed by pressing for too much.” He pointed to the debate to amend the Constitution to overturn Roe vs. Wade in the years following the ruling. Some conservatives, he wrote, argued it would be more politically feasible to amend the Constitution and send the issue back to the states. Others wanted a more strict amendment that would outlaw abortion nationally. “The result was that they got nothing,” he noted.

Daniels views Roe vs. Wade as an example of what can happen when courts redefine the law. The fear is that if the Constitution is not amended, a future Supreme Court will have nothing to prevent it from writing homosexual “marriage” into law — similar to what is happening in Canada.

“The worse case scenario is a repeat of Roe,” he said.

A poll this year by Wirthlin Worldwide showed that 57 percent of American adults support a constitutional amendment to protect marriage. It is not known if that support would erode if the amendment language is broadened.

Passing a constitutional amendment is not easy: It requires approval by two-thirds of the members in both the House and Senate, as well as three-quarters of the states (38). In recent history, the Equal Rights Amendment, supported by the National Organization for Women, was approved by Congress in 1972 but gained the support of only 35 states and failed to become law.

But Daniels believes the Federal Marriage Amendment “will reverse the conventional wisdom” by having its strongest support in the states, instead of in Washington. Thirty-seven states already have passed similar “defense of marriage acts” that say they will recognize marriage only between a man and a woman. That, Daniels pointed out, is only one state short of the number required to adopt a constitutional amendment.

“[I]f it gets outside of the beltway, it will fly through the states,” he said.

Said Land, “It’s the only way to keep the courts from circumventing the will of the people.”

Daniels said the issue is not yet resonating among large numbers of pro-family Americans because they are “busy raising their families and paying their taxes. They’re not trying to engage in social revolution.” Homosexual activists, he said, are the ones forcing the issue.

“Americans want our laws to send a positive message to kids about marriage, family and their future,” he said. “They understand that if this is not stopped, it will be profoundly negative for our children and for future generations.”

A negative ruling in Massachusetts, while not desired, could lead to positive change by energizing pro-family forces, Daniels said.