WASHINGTON – Lawmakers and expert witnesses were divided over a proposed amendment to the Constitution that would define marriage as solely between a man and a woman during a Thursday meeting of a Senate judiciary subcommittee.
A group of four college professors and one pediatrician debated the wording and consequences of the proposed amendment,coming to drastically different conclusions.
Witnesses for the amendment said it would enable states – not individual,activist federal judges – to determine the meaning of marriage. The one law professor and pediatrician opposing the measure said it might actually weaken the concept of marriage. They argued that children raised by gay parents are not adversely affected.
“We will have to define marriage – the only question is who will do the defining – the people or the judges,” Sen. Sam Brownback,R-Kan.,said in support of the resolution. Brownback chairs the constitutional subcommittee.
The only other lawmaker present at the crowded committee hearing,Sen. Russ Feingold,D-Wis.,countered that federal intervention in defining marriage would not be a good idea,and there's no evidence courts are going to act unfairly.
“The main problem is we still don't know what effect it will have if it becomes part of the Constitution,” Feingold said. “There's certainly no crisis warranting a constitutional amendment. … The Constitution was never meant to limit basic rights.”
The proposed amendment is not the first Congress has taken up on the constitutional definition of marriage. During the last Congress,four hearings were conducted on the subject,but neither the Senate nor the House approved an amendment.
Thirty-seven states have laws or constitutional provisions that define marriage in the way the proposed amendment defines it,said Christopher Wolfe,professor of political science and constitutional law at Marquette University.
Some people might object to the amendment because the United States already has the Defense of Marriage Act,which prevents one state from imposing its meaning of marriage on other states,Wolfe said. It's a fact that courts sometimes go out of their way to give controversial rulings on the constitution,he added.
“It is only prudent to remove even the possibility that judges will intervene to strike down the Defense of Marriage Act and the states' laws it was intended to protect,” Wolfe said. “The American people clearly want marriage protected.”
Richard Wilkins,a law professor at Brigham young University,echoed Wolfe's concerns.
“The marriage debate must not be resolved by the courts because the courts are unable to balance all of the different issues involved – it should be left up to the people,” Wilkins said. “More than marriage is threatened – the very meaning of a written constitution may be at stake.”
Much of the hearing was spent debating the amendment's wording and possible unintended consequences.
“I am sorry to say that the amendment reflects remarkably poor lawyering,” said Louis Michael Seidman,professor of law at Georgetown University Law Center.
If adopted,the amendment would ironically grant judges more power in defining marriage because the judges would have to interpret the words “marriage” and “construed,” Seidman said.
“How can a judge possibly determine whether or not a civil union that includes all but a relatively minor benefit of marriage is a ‘marriage in all but name' when even drafters of the amendment don't know the answer to that,” he said.
To become part of the Constitution,an amendment must be approved by two-thirds of the Senate and House and by three-fourths of state legislatures.