Speaking in highly personal terms at the U.S. Senate's second round of hearings on the Federal Marriage Amendment, Massachusetts's Barney Frank on Tuesday challenged supporters of a proposed constitutional ban on same-sex marriages, asking "Who are we hurting?" when same-sex couples want to express the same emotional commitment as other Americans. "All we are saying is, Please, can't we in our lives do this?" said Rep. Frank (D-Mass.), who's openly gay. "When I go home from today's work and I choose because of my nature to associate with another man, how is that a problem for you? How does that hurt you?"
He drew no immediate reply from Judiciary Committee Republicans supporting the proposed federal amendment. Frank's appeal was unusual for Congress, where lawmakers clash vigorously on matters of politics and policy but seldom refer to their personal lives--much less sexual orientation--in an attempt to influence legislation.
His remarks were supplemented by more traditional criticism from Senate Democratic leader Tom Daschle, who accused unnamed supporters of the amendment of seeking to use it for political gain. "There are those who would like to politicize this issue, and they'll use whatever means available to them to maximize whatever value they find politically," said the South Dakota lawmaker. He said he opposes the measure, adding that supporters are "not even close" to having the two-thirds support needed to prevail.
At the same time, committee approval of what would be the 28th amendment to the U.S. Constitution is not in doubt, and the appearances by Frank and other members of Congress as witnesses amounted to a dress rehearsal of the arguments likely to unfold when the matter comes before the full Senate.
Sen. Wayne Allard and Rep. Marilyn Musgrave, the Colorado Republicans who are the amendment's main sponsors, said the measure is needed to curb the power of "activist judges" seeking to redefine marriage to include same-sex couples. "A few state courts, not legislatures, have sought to overturn both statute and common perception of marriage by expanding the definition to include same-gender couples," said Allard.
Sen. John Cornyn (R-Tex.), who presided over the hearing, agreed, saying, "These activists have given us no choice--either we define marriage in the Constitution, or they will redefine it for us and the people will lose out." Rep. John Lewis (D-Ga.), an opponent of the amendment and a black lawmaker, invoked the civil rights struggles of the 1960s in which he took part. "I have fought too hard and too long against discrimination based on race and color not to stand up against discrimination based on same-sex marriage," he said. "I am opposed to any amendment that seeks to write discrimination into the Constitution. I believe amending the Constitution on this issue is an irrational and radical step that seeks to undermine the civil rights of our citizens." Lewis went on to say that "restricting rights of certain individuals would set a dangerous and historical precedent."
But Musgrave, speaking moments later, bluntly challenged that argument. "Of course, this amendment is not about discrimination," she said. Musgrave, who is white, said that "all the members of the Congressional Black Caucus are struggling" with the issue. She quoted one, Rep. Artur Davis (D-Ala.), as saying he had yet to decide his position. In a telephone interview, Davis said, "I do not compare the gay marriage movement to the civil rights amendment," adding that there is a difference of opinion among black lawmakers on the issue. While Davis said he opposes gay marriage, he also said he does not yet have a position on the proposed amendment and accused President Bush of attempting to use the issue for political gain.
Polls consistently show that a majority of the public opposes gay marriage. But the division of opinion is far closer on the question of a constitutional ban, and Republicans appear eager to require Senate Democrats to vote publicly on the issue. The proposed amendment says that marriage "shall consist only of the union of a man and a woman" and adds that courts may not cite the U.S. or state constitutions to rule that marriage rights extend to same-sex couples.
Supporters of the proposed amendment unveiled changes in the measure's wording on Monday that they said would allow state legislatures to pass laws recognizing civil unions or other same-sex relationships. Frank's home state has played a major role in the national debate on gay marriage in recent months, following a ruling by Massachusetts's highest court that the state's constitution guarantees gay couples the right to marry. The state legislature is laboring to write a constitutional amendment on the issue, with a public referendum to follow. "If people decide to allow it, you who do the constitutional amendment will cancel the rights of the people of Massachusetts, and I do not think that is an appropriate response to make here," Frank said.
Also testifying Tuesday in opposition to the proposed amendment were constitutional scholar Cass R. Sunstein and Phyllis Bossin, chair of the Family Law Section of the American Bar Association.
"No matter how it's worded, it's wrong to change the Constitution to discriminate against millions of Americans," said Cheryl Jacques, president of the gay rights group Human Rights Campaign. "With years of experience fighting for the values of equality, Congressman Lewis is an extraordinarily powerful voice against writing discrimination into the Constitution." There is broad opposition to this effort, HRC noted, including Republicans Bob Barr and Alan Simpson, the NAACP, the Mexican American Legal Defense and Educational Fund, the National Women's Law Center, and the American Bar Association. "We thank Senators Feinstein, Durbin, Kennedy, and Feingold--who also spoke at today's hearing--for their unwavering opposition to changing the Constitution on this issue," added Jacques.