Court's Eye for the Married Guy

Luanne James knows about race-based marital discrimination. She is white; her husband Kurt is black. When Mrs. James takes their daughter Gabrielle, 6, for a haircut, she goes to a braidery, a salon that specializes in serving African-Americans. "The women there will say how beautiful my daughter is," said Mrs. James, 34, of San Diego. "But then I hear them saying how frustrating it is to see a good black man, one who works hard and takes care of his family, married to a white woman. They have no problem saying it in front of me."

Mr. James, 36, knows about discrimination, too. "I've seen it from both blacks and whites looking at us as a couple."

But the Jameses see no comparison between their struggle for marital acceptance and the battle homosexuals are waging in the courts to gain acceptance of "gay marriage." When the Massachusetts Supreme Court on Nov. 17 ruled in Goodrich vs. The Massachusetts Department of Public Health that the state constitution prohibits the state from stating that marriage is between a man and a woman, Justice Margaret H. Marshall wrote for the majority:

"For decades, indeed centuries, in much of this country (including Massachusetts) no lawful marriage was possible between white and black Americans.... [In Goodrich], a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance—the institution of marriage—because of a single trait ... sexual orientation.... As it did in [past race-based cases] history must yield to a more fully developed understanding of the invidious quality of the discrimination."

"That," said Mrs. James, "is a crock."

The Massachusetts court used its clout to peddle the notion that "gay marriage" is in the tradition of extending civil rights to disadvantaged groups, but the Jameses and millions of other American families aren't buying. Conservatives and liberals alike acknowledge that Goodrich, in which justices gave the Massachusetts legislature six months to fashion new marriage laws in the court's liberal image, opens the door for the legal redefinition of marriage nationwide. That prospect has galvanized talk of a federal constitutional amendment and put pressure on Democratic presidential hopefuls who mouth support for Goodrich's lunge toward gay "legal equality" but claim not to support "gay marriage" per se.

The Jameses won't be voting Democratic. Mr. James, a native of Trinidad who moved to the United States at age 9, is a registered nurse. Mrs. James is a full-time mom who volunteers at the elementary school where Gabrielle and Nathan, 8, attend. Sitting together in their living room on a tan sectional under a painting of an island scene, the Jameses are matter-of-fact about their opposition to gay marriage.

"It makes me so mad, what we go through as an average American family, trying to be husband and wife, trying to raise children, with a 50 percent divorce rate, the statistics against us, to have gays say, 'We're just like them and we deserve their rights,'" Mrs. James said. "They are just like us as children of God, but they are not like us in being part of the gift of marital union. The biblical covenant of marriage cannot be compared to two men going to bed."

An October Gallup poll found that most Americans hold similar views: 64 percent of voters over age 30 opposed gay marriage, while just under half of voters between ages 18 and 29 felt the same way. Recent Time/CNN and Pew Research Center polls yielded similar results. Goodrich may be spurring even more grassroots opposition. Massachusetts lawmakers report a landslide of citizen e-mails urging the legislature to adopt a state constitutional amendment that would nullify Goodrich by restricting marriage to one man and one woman. And, after the decision came down, the Virginia-based Alliance for Marriage (AFM) saw citizen signatures on a petition supporting a federal marriage amendment jump 20 percent overnight.

Observing the rise of judicial activism on behalf of homosexuals, AFM president Matt Daniels has long predicted the virtual certainty of a decision like Goodrich. His group has since 2001 worked to shepherd through Congress a marriage amendment to the U.S. Constitution. AFM emphasizes its racial, ethnic, and religious diversity, and has an advisory board that includes blacks, whites, Hispanics, Koreans, Jews, Muslims, Catholics, and evangelicals—a fact studiously ignored by media outlets that prefer to paint those opposed to gay marriage as angry, white foot soldiers of the religious right.

AFM's amendment, originally introduced in 2001 and then reintroduced by Rep. Marilyn Musgrave (R-Colo.) as House Joint Resolution 56 in 2003, states: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or legal incidents thereof be conferred on unmarried couples or groups."

Why is a constitutional amendment necessary when 37 states and the U.S. Congress have in recent years passed "DOMA" (Defense of Marriage Act) laws that define marriage along traditional lines? First, the federal DOMA, signed into law by President Clinton, cannot prevent activist state judges from interpreting their own constitutions to allow same-sex marriage, as in Goodrich—or at least to confer marital benefits on homosexual couples, as in Baker, a 2000 case in Vermont. Second, according to AFM, the federal DOMA does not prevent states from recognizing foreign same-sex marriages. Third, loose constructionist U.S. Supreme Court justices down the road could follow the path of their Massachusetts counterparts and turn established marital law upside down.

Leading up to the Goodrich decision, 96 members of Congress had co-sponsored AFM's marriage amendment. Within days after Goodrich, 11 more lawmakers quickly signed on. "A lot of people didn't realize the gravity of the situation" until after the court decision, said Rep. Mike McIntyre (D-N.C.), an original co-sponsor. "Sometimes it takes something like this to jolt people into action." H.J. Res. 56 co-sponsors include seven other Democrats: Lincoln Davis (Tenn.); Ralph Hall (Texas); Ken Lucas (Ky.); Collin Peterson (Minn.); Charles Stenholm (Texas); Gene Taylor (Miss.); and Rodney Alexander (La.).

Does AFM's amendment go far enough? American Family Association head Don Wildmon, who is "hopeful that the Massachusetts Supreme Court slapped American Christians in their face and woke them up," argues that AFM's amendment "would protect marriage in name only. Some people would argue with me on that." AFM's Mr. Daniels would: "It's our view that given what we know about the politics of this issue at the state level and in Congress, that it is not politically possible to take away the existing authority of state legislatures over questions of [marital] benefits. We do have a very real chance to amend the Constitution to save marriage, but we can only succeed if we work within the realm of what is politically viable."

Leaders of several conservative, pro-family groups, dubbed the "Arlington Group," have for months prior to the ruling met to hammer out strategies for dealing with the gay assault on traditional marriage. The consortium includes Family Research Council (FRC), Focus on the Family, Concerned Women for America, God's World Publications (the company that owns WORLD magazine), American Family Association, Empower America, Eagle Forum, and other groups. The leaders have discussed whether to craft a constitutional amendment that simply defines marriage as the union of a man and a woman, or whether to buttress it with language that would prohibit states from approving same-sex civil unions and domestic partnerships.

Tony Perkins, a former Louisiana lawmaker who in September took the helm of FRC specifically to fight for traditional marriage, said the consensus of the Arlington Group was to work "to get the strongest language possible"—but definitions of possible differ. As H.J. Res. 56 works its way through the House (Rep. McIntyre told WORLD he expects no action until early February), the Arlington Group is hoping GOP leaders will introduce their amendment in the Senate as soon as lawmakers return from holiday hiatus.

Meanwhile, other groups are also working quickly. For example, the Union of Orthodox Jewish Congregations of America filed a friend-of-the-court brief in Goodrich and now is working with members of Congress on strategies for protecting traditional marriage. "We are not trying to be liberal or conservative, Republican or Democrat," said OU public-policy director Nathan Diament. "We are trying to translate Jewish tradition and values into the current context of public-policy discussion."

The U.S. Conference of Catholic Bishops (USCCB) is capturing the attention of parishioners with a Q & A pamphlet that educates lay people on the topic of gay marriage. The pamphlet reflects the strong statement affirming traditional marriage that the conference issued in November. "What people had previously presumed everyone understood as a general ethic is now called into question," USCCB spokesperson Sister Mary Ann Walsh said of the impact of Goodrich. "Twenty-five years ago, there was no question about redefining marriage. Now people need assistance formulating an understanding of the issue. The [Catholic] church wants to make sure people are educated."

Walter Fauntroy, founder and president of the National Black Leadership Round Table, wishes the "gay marriage" issue would just go away. A Democrat and 10-term former congressman from the District of Columbia who worked with Martin Luther King Jr., Mr. Fauntroy lives in inner-city D.C. and says, "I resent having to waste my time discussing it when there are people outside my door who don't have jobs." But discuss it he must, Mr. Fauntroy says, since the debate "merits a response from all people, conservatives and liberals, who are concerned about a civil society. The institution of marriage in human history has always been for the purpose of procreation and socialization." Two people of the same sex, he said, can't fill either bill.

Democratic presidential hopefuls, meanwhile, are trying to preserve their political liberal base by expressing support for Goodrich while straining not to alienate centrists in the general electorate with a wholesale endorsement of what remains a radical notion. Resulting sound bites have ranged from General Wesley Clark's tiptoe-through-the-minefield post-Goodrich statement ("As president, I would support giving gays and lesbians the legal rights that married couples get") to Richard Gephardt's pained Nov. 19 pronouncement: "I do not support gay marriage, but I hope the Massachusetts state legislature will act in a manner that is consistent with today's Massachusetts Supreme Judicial Court ruling."

Sen. John Kerry (D-Mass.) said he continued to oppose "gay marriage" but wanted the Massachusetts legislature to "take action to ensure equal protection for gay couples. These protections are long overdue." Democratic frontrunner Howard Dean congratulated the Massachusetts court on paving the way for legislators to set up domestic partnerships like those he signed into law during his time as Vermont's governor. Still, he stopped short of embracing gay marriage: "One way or another, the state should afford same-sex couples equal treatment under law in areas such as health insurance, hospital visitation, and inheritance rights."

Senator-candidate Joe Lieberman (D-Conn.), an adherent to Orthodox Judaism, may have worn the most pained expression last week. In 2000, while running for vice president, he said he was wrestling with the idea of gay marriage and civil unions. Three years later, he seems to have made up his mind: "Although I am opposed to gay marriage, I have also long believed that states have the right to adopt for themselves laws that allow same-sex unions."

But not only Democrats have political problems with this issue. When Dick Cheney ran for vice president in 2000, he said this: "We don't get to choose and shouldn't be able to choose and say, 'You get to live free, but you don't.' And I think that means that people should be free to enter into any kind of relationship they want to enter into. It's really no one else's business in terms of trying to regulate or prohibit behavior in that regard." Mr. Cheney, whose gay daughter Mary brings her partner to White House functions, has apparently not changed his position.

Mr. Cheney's embrace of his daughter's sexual choice provides a White House connection for the Republican Unity Coalition (RUC), an effort to build a GOP where "sexual orientation is not an issue"; Mary Cheney recently joined the group's advisory board. GOP newcomer Charles Francis founded RUC after George W. Bush took office and quickly recruited party veterans—former Los Angeles mayor Richard Riordan, former Wyoming senator Alan Simpson, and former president Gerald Ford—to give the group gravitas.

Mr. Simpson opposes the federal marriage amendment but also thinks gay activists ought to pipe down. "To be talking all day long about gay marriage is a tragedy," he wrote in a September op-ed in The Washington Post. "We have made so much advancement in this party, in this state, in this country, and they bring up the one issue that's contentious.... Beats hell out of me why you want to drag that dead cat around.... Because see what happens? My whole party is now trying to do a constitutional amendment."

And that is the way politics is likely to play out on this question. Bush adviser Karl Rove, intent on preserving the president's conservative base for next year's election, is likely to push for a GOP pro-marriage stand that will place an albatross around Democratic necks. Squirm though they might, Democratic presidential candidates will have a hard time reaching out to those who believe that marriage is between a man and a woman, without alienating their "anything-goes" core supporters. But both parties have mixed records and motives: How this all shakes out may determine the occupant of the White House in 2005, and will certainly affect houses in every American city for decades to come.