Republicans Oppose Anti-Marriage Amendment

Republicans, like gay men and lesbians, do not all think alike. Neither group marches in lockstep with its leaders, nor do they agree monolithically on all major public policy issues. This is true with issues like gay marriage as much as it with taxes, transportation, education, the war on drugs, the war in Iraq, and how best to restore constitutional limits to an unbridled government.

According to Fred Barbash, writing in the Washington Post, the proposed amendment to the U.S. Constitution that would have the effect of banning gay marriage failed again in the U.S. Senate, by a vote of 49-48. (Sixty-seven votes were needed to advance the amendment to the next stage of the ratification process.) The failed effort actually ended on a cloture vote, which requires 60 votes, but this procedural vote is a good indication of the amendment's actual support.

The Post reports that:

Seven Republican senators voted, in effect, to kill the amendment, according to an Associated Press tally. They were Lincoln D. Chafee of Rhode Island, Susan Collins of Maine, Judd Gregg of New Hampshire, John McCain of Arizona, Olympia J. Snowe of Maine, Arlen Specter of Pennsylvania and John E. Sununu of New Hampshire.

No doubt these senators were inspired by Republicans across the country (including both conservatives and libertarians) who opposed the amendment and urged the Senate to reject it.

For instance, when the amendment was first coming up for a vote in 2004, the Republican Liberty Caucus passed a resolution opposing it, a resolution that is still the official position of the caucus:

"The Republican Liberty Caucus applauds those prominent Republican leaders who have courageously opposed the pending Federal Marriage Amendment. We oppose the adoption of this Amendment as a clear violation of the RLC's fundamental principles. The news release announcing our position is approved." - Adopted on July 8th, 2004.

The "news release" mentioned in the resolution more fully explains the position of the Republican Liberty Caucus; there are also several quotations in opposition to the amendment from prominent Republican leaders appended to it.

The news release states:

The Republican Liberty Caucus, a national activist organization, has “applauded prominent Republican leaders who have courageously opposed” the pending Federal Marriage Amendment. "The RLC is proud to join hands with Republican legislators and party leaders who recognize that the proper purpose of government is to protect individual rights, not restrict liberty," said RLC Chairman William Westmiller. The proposed constitutional amendment [S.J. Res. 30] has been scheduled for a U.S. Senate vote on July 15th.

The proposal would ban states from granting any civil union privileges to gay couples. "Marriage and divorce laws have always been crafted by states,” said RLC Advisor and Texas Republican Congressman Ron Paul, “The federalgovernment has no role whatsoever."

Although proponents claim that their amendment merely restrains judicial activism, the text prohibits every state from adopting laws that grant any of the "legal incidents" of marriage, even through civil unions. Former Congressman Bob Barr, who has received high ratings in the RLC’s Liberty Index, testified to the Senate Judicial Committee last week, saying "A constitutional amendment is both unnecessary and needlessly intrusive and punitive." Barr, who serves as an ACLU consultant, says states should be allowed "wiggle room to decide on their own definitions for marriages or similar social compacts, free of federal meddling."

The RLC supports a strict construction of the Bill of Rights as a defense against tyranny, the expansion of those rights to all voluntary consensual conduct under the Ninth and Tenth Amendments, and the requirements of equal protection and due process under the Fourteenth Amendment. The RLC resolution, adopted unanimously by the Board of Directors, opposes the Federal Marriage Amendment as clear violation of these principles.

"Marriage is a religious, social and personal matter,” says RLC Advisory Board Director Douglas Lorenz, "that should not be dictated, endorsed, subsidized or restricted by any government. The right to pursue individual happiness is a fundamental liberty that should be free of all state intervention. True love and genuine personal commitment do not need legal support or sanction."

RLC Advisory Board member Lyn Nofziger, a former Reagan Press Secretary, says he opposes any amendment that would “give the federal government more authority, usually at the expense of the states, and broaden its intrusion into the lives of citizens. Even though I do not favor same sex marriages, I oppose a constitutional amendment that would ban them."

The Republican Liberty Caucus has members in all 50 states and 10 chartered state organizations dedicated to promoting the ideals of individual rights, limited government and free enterprise within the Republican Party.

A couple of historical notes, since this press release is two years old and some people may not be familiar with the names or the context: (1) former Congressman Bob Barr was the principal author of the Defense of Marriage Act (DOMA), which was passed by Congress and signed by President Bill Clinton in 1996; the primary effect of DOMA is to say that states do not have to recognize same-sex marriages performed in other states, nor does the federal government have to provide benefits to same-sex couples (such as Social Security or veterans' survivor benefits); (2) Lyn Nofziger recently passed away.

The Liberty Committee, another largely Republican congressional organization, also issued a statement against amending the Constitution for purposes of banning same-sex marriage. It cites former or current Members of Congress Bob Barr, Ron Paul, Christopher Cox, and Senator John McCain; Wyoming State Senate Judiciary Committee John Hanes; and law professor Dale Carpenter as arguing that an amendment is unnecessary. It quotes Barr on the quintessentially libertarian core of what the constitution means:

Mr. Bob Barr and Dr. Ron Paul encourage people who believe in our constitutional republic and who believe in the traditional definition of marriage to apply their time and energy in their home states.

As Mr. Barr recently stated, "As conservatives, we should be committed to the idea
that people should, apart from collective needs such as national defense, be free to govern themselves as they see fit. State and local governments provide the easiest and most representative avenue to this ideal. Additionally, by diffusing power across the federal and state governments, we provide impersonal checks and balances that mitigate against the abuse of power.

"To be clear, I oppose any marriage save that between one man and one woman.
And, I would do all in my power to ensure that such a formulation is the only one operative in my home state of Georgia. However, do I think that I can tell Alaska how to govern itself on this issue? Or California? No, I cannot. Those states are free to make their own decisions, even if they are decisions I would characterize as bad."

During this week's floor debate, a few Republicans indicated their opposition to the amendment (now known as S.J. Res. 1) According to BP News, a publication of the Southern Baptist Convention:

Sen. John McCain, R.-Ariz., said he could not "at this time" support the amendment.

Sen. John Warner, R.-Va., said he has concerns with the amendment in its present form. Specifically, Warner said he objects to the amendment's second sentence, which states, "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 first sentence of the amendment simply says marriage "shall consist only of the union of a man and a woman."

"I am concerned that the second sentence of this proposed constitutional amendment is unnecessarily vague and could well trample on the rights [of the states]," he said, adding that the second sentence lacks "clarity."

The Washington Post notes that Senate Judiciary Committee Chairman Arlen Specter (R-Pennsylvania)

spoke against the amendment, calling it "a solution in search of a problem." Like Reid and some other senators, Specter said he opposes same-sex marriage but feels states can handle the issue.

Getting back to the Republican Liberty Caucus resolution and press release, the collection of quotations the RLC gathered are informative and enlightening:

“I don’t think the Constitution was ever written and set up for these kind of amendments. I think those issues are better left to the states.” - Republican Senator Chuck Hagel of Nebraska

“Regardless of how you feel about gay marriage, I don’t know that it’s a good idea to put it in the Constitution.” - Republican Senator John Ensign of Nevada

“Current law giving states the authority to set marriage laws is enough. I am not persuaded that amending the Constitution is necessary.” - Republican Senator Lamar Alexander of Tennessee

“Amending the Constitution should not be taken lightly. Consequentially, I will not support a constitutional amendment until I am convinced that no legislative alternatives exist, that federal action is appropriate and that an amendment is warranted.” - Republican Senator Bob Bennett of Utah

“I believe that the decision to ban gay marriages should be left up to the individual states and I am reluctant to tinker with the Constitution. - Republican Senator Ben Nighthorse Campbell of Colorado

“I don’t think [the FMA] is appropriate. I think it minimizes the Constitution.” - Former Republican Senator Alan Simpson of Wyoming

“I do not believe that amending the U.S. Constitution to invalidate all legal protections for unmarried couples, gay or straight, is a way to strengthen the American family. In fact, I believe that establishing such an amendment only harms our American families. I will not support an amendment that discriminates against American citizens and preempts state’s rights.” - Republican Congressman Rob Simmons of Connecticut

“I don’t believe we should be tinkering with the Constitution. Gay marriage should be left to the states. I think gay couples should have civil union rights.” - Republican Congressman James Greenwood of Pennsylvania

“I will say that I’m not supportive of amending the Constitution on this issue. I believe that this should go through the courts and I think that we’re at a point where it is not necessary.” - Republican Congressman David Dreier of California

“I have always revered the U.S. Constitution and am very cautious of any efforts to amend this precious document, including the proposed Federal Marriage Amendment. I do not support a constitutional amendment that seeks to define marriage as being exclusively between a man and a woman.” - Republican Congresswoman Mary Bono of California

“I believe [marital laws] are up to the states, not the federal government. The President seems to call for [it, but] I don’t think we need a constitutional amendment.” - Republican NY Mayor Michael Bloomberg

“I think that different states are likely to come to the different conclusions [on gay marriage]. I don’t think there should necessarily be a federal policy in this area. I think we ought to do everything we can to tolerate and accommodate whatever kind of relationships people want to enter into.” - Republican Vice President Dick Cheney [2000 Debate]

The Constitution does not “empower the federal government to regulate marriage, littering or cruelty to animals throughout the 50 states. Our Constitution quite properly leaves such matters to the individual states.” – [Bush] Appointee Supreme Court Justice Clarence Thomas (U.S. v. Lopez)

The failure of the amendment in the Senate does not end the debate. House Majority Leader John Boehner has said the House will consider the amendment next month. It will fail there, too, but not before a lot of rhetoric fills the airy dome of the U.S. Capitol.