Fails to Win 2/3 House Vote; Author Still Claims
anticipated federal court ruling. Never before
Victory; Opponents Cite Racist Parallel," Denver
have we adopted a constitutional amendment
Post, October 1, 2004, p. A2.
to limit the states' ability to control their own
7. See U.S. Constitution, Art. V.
family law. Never before have we dictated to
states what their own state laws and state con-
8. Senate Republican Policy Committee, "The
stitutions mean. Never before have we amended
Threat to Marriage from the Courts," July 29, 2003,
the Constitution to restrict the ability of the
http://rpc.senate.gov/_files/civilsd090403.pdf.
The Senate Republican Policy Committee has con-
democratic process to expand individual rights.
tinued to warn about court activism, despite the
This is no time to start.
fact that court-ordered recognition of gay marriage
has occurred in only 1 of the 50 states. Senate
Republican Policy Committee, "Why a Marriage
Notes
Amendment Is Necessary," March 28, 2006, http:
//rpc.senate.gov/_files/Mar2806MarriageAmend
The author wishes to thank Ryan Scott for valu-
SD.pdf.
able research assistance and comments and David
Boaz, Mae Kuykendall, David McGowan, and
9. Quoted in Edwin Chen, "Bush Urges Same-Sex
Roger Pilon for their comments. This paper is a
Marriage Ban," Los Angeles Times, February 25, 2004,
revised version of a study posted on the Cato
p. A1.
Institute's website on September 23, 2004.
10. For a good summary of marriage law in the
1. See Goodridge v. Department of Public Health, 798
states relating to the recognition of gay marriages,
N.E.2d 941, 969 (Mass. 2003).
including the states that have passed "little DOMA"
laws and have passed or are considering state con-
2. David Aucton and Laura Gunderson, "Ties That
stitutional amendments, see Kavan Peterson, "50-
Bind and Divide: Multnomah County Recognizes
State Rundown on Gay Marriage Laws," September
Gay Marriage amid Joy, Protest," Oregonian, March 4,
8, 2004, http://www.stateline.org/stateline/?pa=
2004, p. A1 (describing Multnomah County, Oregon,
story&sa=showStoryInfo&id=353058.
chairwoman Diane Linn's decision to issue marriage
licenses to same-sex couples); Joshua Akers, "AG Says
11. Defense of Marriage Act § 3(a), Pub. L. No.
68 Licenses Are Illegal," Albuquerque Journal, February
104-199, 110 Stat. 2419 (codified at 1 U.S.C. § 7
21, 2004, p. A1 (describing Sandoval County, New
(2002)).
Mexico, clerk Victoria Dunlap's decision to issue
marriage licenses to same-sex couples); and Rachel
12. For example, the Gay and Lesbian Advocates
Gordon, "S.F. Defies Law; Marries Gays," San
and Defenders, which sponsored the Massa-
Francisco Chronicle, February 13, 2004, p. A1 (describ-
chusetts litigation, filed suit seeking the recogni-
ing San Francisco mayor Gavin Newsom's decision
tion of same-sex marriages in neighboring
to issue marriage licenses to same-sex couples).
Connecticut. Danela Altimari, "Suit Paints Same-
Sex Marriage as Ordinary," Hartford Courant,
3. I should acknowledge here that I support same-
September 7, 2004, p. A1.
sex marriage as a policy matter.
13. I will not address here my personal view of the
4. Many conservatives who oppose same-sex mar-
merits of the constitutional arguments for same-
riage also oppose a constitutional amendment
sex marriage, but only the likelihood that such
banning it. See p. 12.
arguments will be persuasive to courts of final
resort in the near future.
5. The two senators who missed the cloture vote,
John Kerry (D-MA) and John Edwards (D-NC),
14. See, e.g., Singer v. Hara, 522 P.2d 1187, 1197
opposed a federal amendment banning gay mar-
(Wash. Ct. App. 1974), review denied, 84 Wash. 2d
riages. See, e.g., Gebe Martinez, "Gay Marriage Ban
1008 (1974).
Defeated in Senate: Vote Shows Shift in GOP,"
Houston Chronicle, July 15, 2004, p. 1. In addition, a
15. Advocates of same-sex marriage have lost in the
few Republican senators who voted for cloture have
following state court decisions: Lewis v. Harris, No.
indicated opposition to, or serious doubts about the
MCR-L-15_03, 2003 WL 23191114, at *28 (N.J.
need for, a constitutional amendment. Among them
Super. Ct., Nov. 5, 2003), aff'd by 875 A.2d 259 (N.J.
is Sen. Arlen Specter (R-PA). See Steve Goldstein,
Super. A.D. 2005); Standhart v. Super. Ct. ex rel., City
"Will Defeat on Gay-Marriage Ban Hurt
of Maricopa, 77 P.3d 451, 465 (Ariz. Ct. App. 2003);
Santorum?" Philadelphia Inquirer, July 15, 2004, p. A1.
Shields v. Madigan, 783 N.Y.S.2d 270 (N.Y. Sup.
2004); Seymour v. Holcomb, 790 N.Y.S.2d 858 (N.Y.
6. Anne C. Mulkin, "Gay-Marriage Amendment
Sup. 2005), aff'd by 2006 WL 346463 (N.Y. A.D.
17