February 26, 2004
Mr. Joseph Traub
12221 Northeast 100th Street
Kirkland, Washington 98033-4660
Dear Mr. Traub:
Thank you for contacting me regarding the “federal marriage amendment”. I am glad to know your views on this matter.
In 1996 the Defense of Marriage Act (DOMA) was enacted into law. DOMA created the first federal definition of marriage: one woman and one man. This law also lets states choose whether to recognize same-sex marriages performed in other states. DOMA may be an unconstitutional violation of the “full faith and credit” clause, but it has yet to be tested in court. In addition, 38 states-- including Washington--have passed equivalents of the federal Defense of Marriage Act.
Vermont allows gay and lesbian couples to register for civil unions, while California, Connecticut, the District of Columbia, Hawaii and New Jersey have limited domestic partnership statutes. On November 18, 2003, Massachusetts’ highest court ruled 4-3 in Goodridge et al. v. Department of Public Health that under that state’s constitution, same-sex couples may not be denied the right to obtain civil marriage licenses. This ruling does not affect the right of religious organizations to decide what rituals they perform for whom. The Court gave the Governor and the Legislature 180 days to enact legislation complying with this decision.
There will likely be efforts in Massachusetts to amend the state constitution to effectively reverse the Court’s decision. Alaska and Hawaii chose to do so when their highest courts ruled that same-sex couples had a right to marry. However, the Massachusetts Constitution takes at least 3 years to amend, so a similar amendment could not be ratified before late 2006. Because the case was decided under the Massachusetts Constitution by the highest court in that state, it cannot be appealed, and virtually ensures that Massachusetts will become the first state to issue marriage licenses to same-sex couples. After that happens, legal challenges to state and federal DOMA laws are likely, as are cases involving American gay and lesbian couples who have obtained marriage licenses in the Canadian provinces of British Columbia and Ontario.
In the U.S. House of Representatives, Rep. Marilyn Musgrave (R-CO) has introduced H. J. Res. 56, a resolution which would amend the U.S. Constitution to require that all marriages be comprised of one woman and one man. In the Senate, Wayne Allard (R-CO) has introduced similar legislation which is pending in the Judiciary Committee.
While I do not serve on the Senate Judiciary Committee, I would oppose this resolution if the Senate considered it. Amending the Constitution is a serious step--one we have taken just 27 times in the 215 years since the Constitution was ratified and 17 times since the Bill of Rights was ratified in 1791. With the exception of prohibition, which was repealed 14 years later, the Bill of Rights has never been amended to restrict our rights. The Constitution leaves marriage to be regulated by the states rather than the federal government. The states set rules and requirements governing civil marriage, while the Constitution’s “full faith and credit” clause guarantees that marriages and many other functions such as contracts, divorces and drivers’ licenses valid in one state must be recognized by all states. In due time, the courts will fulfill their intended role by ruling on this clause and its bearing on the constitutionality of state and federal DOMA laws.
America is a strong nation, and our diversity only makes us stronger. But if we are to remain so, we cannot afford to waste time or energy dividing and conquering each other. Our nation will be best off when we appreciate each other’s differences and treat all Americans with respect and dignity. By understanding our differences, we also learn that we are very much the same.
Again, thank you for contacting me. Please do not hesitate to call on me in the future if I can be of assistance.
United States Senator