Apr 20, 2006  |  By: LOU CHIBBARO J  | COMMENTS     

Liberal and conservative experts on constitutional law agreed this week that the proposed Marriage Protection Amendment, which supporters say is aimed at barring courts from legalizing same-sex marriage, also would prohibit state legislatures from passing gay marriage laws.

But the experts disagreed over whether the sweeping constitutional amendment would invalidate existing civil union and domestic partnership laws and prevent other states from passing such laws in the future.

The Senate Judiciary Committee is scheduled to vote on the MPA on April 27, and Senate Majority Leader Bill Frist (R-Tenn.) has scheduled a full Senate vote on the amendment for the first week in June.

The amendment states, "Marriage in the United States shall consist solely of the union of a man and a woman. 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 a union between a man and a woman."

The House and Senate defeated the amendment in 2004 after supporters failed to line up the required two-thirds vote needed to pass a constitutional amendment. Capitol Hill observers predict both houses will defeat the amendment again this year.

The Senate defeat of the amendment in 2004 came shortly after the amendment’s supporters revised its wording. The revised version removed from the second sentence a phrase that said "state or federal law," in addition to the federal or state constitutions, could not be construed to require "that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

A dose of ‘poison’

Some legal observers speculated that the removal of the "state or federal law" clause opened the way for the amendment to allow states—through their normal legislative process—to pass domestic partner, civil union, and even same-sex marriage laws.

Gay rights advocates disputed such speculation, calling the changed amendment a Trojan horse that was as harmful to gay rights as the first version.

David Buckle, an attorney who specializes in marriage issues for the Lambda Legal Defense & Education Fund, said the first sentence in the proposed amendment clearly states that marriage in the United States must be limited to a man and a woman.

"The bad guys who are pushing this are already arguing quite vigorously that the first sentence shuts everything down," said Buckle. "It would be the law of the land, and the second sentence would not change that."

Other advocates agreed.

"It’s the same poison in a new bottle being presented for those who want to drink it," said Evan Wolfson, executive director of Freedom To Marry, a same-sex marriage advocacy group.

In an interview this week, Catholic University Law School Professor Robert Destro, who said he is sympathetic to the MPA and has provided legal advice for its supporters, agreed with gay rights advocates that the amendment would not allow states to pass gay marriage laws.

"The first sentence answers this question," Destro said. "It pre-empts state law. Period. End of story."

Destro, however, said he believes the second sentence clears the way for states to pass civil union or domestic partnership laws.

Walter Olson, senior fellow with the Manhattan Institute, a conservative-libertarian think tank, said he, too, agrees that the first sentence in the proposed marriage amendment "is clearly the dominant one."

Olson said conservatives like him, who support states-rights principles, believe the constitutional amendment process was "hijacked" by those who would prohibit states from enacting laws—including same-sex marriage laws—through the normal legislative process.

"They don’t care how completely democratic the process may be," Olson said. "They have discovered there are some things more important than popular sovereignty, such as their getting to win."

A question of states’ rights

Gay libertarian activist David Boaz, executive vice president of the Cato Institute, a libertarian think tank, said his group has taken no official position on the MPA but he and most libertarians strongly oppose it.

"The main argument we would make is that marriage law has always been left to the states," Boaz said.

Much to the dismay of libertarians, Boaz said, supporters of the MPA in Congress and among so-called pro-marriage groups have ignored the principle in favor of a constitutional amendment that would trample states’ rights.

"I have not seen anything from the supporters that they would restrict the amendment to judicial edicts," he said.

Christopher Anders, an attorney and legislative analyst for the ACLU’s Lesbian & Gay Rights Project, said the ACLU believes the MPA would ban state ...