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THE DAY AFTER TOMORROW HYSTERIA By Chuck Muth May 16, 2004 Barring some last-minute hocus-pocus, gays will, for the first time ever, be able to legally marry in the United States starting tomorrow. Opponents of same-sex marriage have come to refer to this rendezvous with history as �Destruction of Marriage Day.� But much like the Hollywood global warming disaster flick �The Day After Tomorrow� (which hits air-conditioned theaters near you next weekend), such hysteria makes for great fundraising copy, but hardly reflects reality. The thing is, there may be good, compelling, legitimate arguments for passing a Federal Marriage Amendment (FMA) to prohibit Massachusetts from doing what Massachusetts is likely to do tomorrow. But if so, we�re still waiting to hear them. Instead, all we�re getting are barbarians-at-the-gate hysteria, gross exaggerations, changes of subject and - I hate to say it - outright lies. Such arguments are destined to fall under their own weight in the long term, regardless of their �popularity� in the present day. Here, I�ll give you some examples... These come from arguments made this week by Rep. Marilyn Musgrave (R-Colo.), the driving force behind the FMA in the House. Far more outlandish examples by various opponents, including some religious activists, are out there but let�s just stick with the leader of the band for now. Let�s start here: In a taped message for the Free Congress Foundation released this week, Musgrave stated: �For the first time in America�s history homosexual couples will be allowed to legally marry as the result of the usurping of power by a handful of judges in the Massachusetts Supreme Court who ruled that traditional marriage is unconstitutional.� Now, you may well be against same-sex marriage every bit as much as the congresswoman, but if you have ANY sense of intellectual integrity whatsoever you can�t help but acknowledge that that statement is flat out false, plain and simple. The Supremes did NOT rule that traditional marriage is unconstitutional. The day after tomorrow, hundreds and thousands of �traditional� marriages will continue to legally take place. I mean, this point isn�t even debatable. Why would a United States congresswoman say something so blatantly and obviously untrue? Again, there may be plenty of legitimate and truthful things one could say about the Massachusetts decision to express opposition to it. This, however, is certainly not one of them. So why do it? Now let�s move on to Rep. Musgrave�s testimony before the House Judiciary Subcommittee on the Constitution this past Thursday. Ah, where to begin. Well, let�s just move through her opening statement in order of presentation. Rep. Musgrave informed the committee that she does not �lightly propose� amending our Constitution; rather, she is proposing to do so �only as a last resort.� I suppose that must depend on your definition of �last resort.� Here�s the bottom line on this point. Once same-sex marriages take place in Massachusetts, some gay couples are going to move to or return to other states and request that those states, which currently do not allow same-sex marriages, officially recognize their Massachusetts-sanctioned marriage, invoking the Full Faith & Credit Clause of the Constitution. It�s going to happen, make no mistake. What�s not so clear, however, is how these challenges will be settled. First, an impressive body of legal scholars have made the case that the FF&C clause does not and will not apply to marriages. Secondly, Congress passed the Defense of Marriage Act (DOMA) way back in 1996 which specifically says that one state does not have to recognize the same-sex marriages performed in another state. Two points here: (1) DOMA has yet to be successfully challenged in court, and (2) Congress already has the authority under the existing Constitution to strip the federal courts of any jurisdiction to even hear a challenge against DOMA. Protecting states� rights with regard to same-sex marriage can be passed by simple majorities in the House and Senate. So Rep. Musgrave�s contention that her federal marriage amendment is a �last resort� option is, once again, flat out false, plain and simple. Rep. Musgrave also makes a number of biblical arguments in her statement; however, we�re talking about our government and the Constitution here, so they simply aren�t germane to this discussion. They ARE germane to a discussion on whether or not one�s CHURCH should recognize same-sex marriages; however, Congress is not a church, the Constitution is not the Bible and the United States is a republic, not a theocracy. So let�s move on. Rep. Musgrave also stated for the record: �I have introduced the FMA to stop this judicial activism and preserve the right of self-determination for the American people�� She goes on to claim that FMA would not �nationalize marriage law� and maintained that �no one is a stronger supporter of the principles of federalism.� OK, I�m opposed to judicial activism, too, though a legitimate debate can be had over whether or not the Massachusetts court decision was, in fact, an example of judicial activism. Nevertheless, the fact remains that the FMA doesn�t ban judicial activism in all its ugly forms; it only bans gay marriage. Why? If judicial activism is such a major problem, why only address it in this one, narrow instance? Some might look at this and suggest there�s some kind of bias or phobia at work (perish the thought!). Now to the crucial issue of states� rights (I know, for all you purists out there, that individuals, not states, have rights, but just accept the context here, OK?). Rep. Musgrave contends that a national ban on same-sex marriages would not �nationalize marriage law.� That she said this with a straight (pardon the pun) face is commendable. The undeniable fact is, if FMA passes, no state, regardless of what its people or legislature decides, will be allowed to allow same-sex marriages. No state. So even if cash-strapped Californians change their minds and decide to sanction same-sex civil marriages in order to enjoy the financial windfall which would surely follow, they would be banned from doing so. How does that �preserve the right of self-determination�? How does that support �the principles of federalism�? Sorry, congresswoman, but by your own words I have to say that there are a LOT of conservatives who are stronger supporters of �the principles of federalism� than yourself. Next on the chopping block? Rep. Musgrave goes on to suggest that �the primary function of marriage has always been to provide a legal context for procreation and child rearing by fathers and mothers.� I�ve heard this argument quite often and it is one of the weakest arguments out there. I can�t even begin to imagine why FMA supporters continue to make it. First, if the only purpose of marriage is to have children, then there are a whole lot of �straight� marriages which need to be dissolved...including the second marriages of both my parents. And what about infertile couples who simply cannot have children? Are we to deny them the ability to marry? What about straight couples who CHOOSE not to have children? Should the government deny them the ability to get married...or COMPEL them to have children? As for gays raising children, I�ve said it before and I�ll say it again: There are a TON of straight married couples who shouldn�t be allowed within a country mile of a child. This isn�t about gay or straight; it�s about whether or not kids can successfully be raised in a particular household. Sure, kids raised by gay parents are going to have certain challenges they�ll have to overcome; however, while those challenges may be difficult, they will be no more difficult than those faced by a child being raised by a single mother, or a child being raised by a mixed-race couple, or a child being raised by a welfare mom and a crack-dealing dad. So much for THAT argument. �Finally, Mr. Chairman,� the congresswoman says as she begins to wrap up, �polling data supports�� Polling data? First, who cares? This isn�t a democracy; it�s a constitutional republic. If polling data supported the return to slavery, would the congresswoman be sponsoring a bill to repeal the 13th Amendment? I sure hope not. Secondly, Rep. Musgrave cites only one poll to make her case; a CBS News/New York Times poll conducted last March. However, other polls - including one limited solely to evangelical Christians - show that while folks don�t necessarily support the notion of same-sex marriage, they nonetheless also oppose a constitutional amendment banning them. So there you go. Live by the poll, die by the poll. Rep. Musgrave�s final sentence of her testimony brings us full circle and, again, undermines her argument. �The purpose of the FMA,� she says, is to tell the United States Supreme Court �that they have erred.� But there�s an 800-pound gorilla in that statement: The U.S. Supreme Court hasn�t RULED on this issue yet. Rep. Musgrave wants to take the extreme measure of amending the Constitution to reverse a Supreme Court decision which hasn�t even been rendered. Now, I understand and support the concept of pre-emption when it comes to the war on terrorists, but over marriage? And speaking of the war on terrorists, how many members of Congress missed that now-infamous January 16, 2004, Pentagon press release about prison abuses at Abu Ghraib because they were focusing on this federal marriage amendment instead? Isn�t it time for Congress to get back to the REALLY important national issues and leave the states to deal with their own marriage laws, just as the Founders intended? Tomorrow, gays will be getting married in Massachusetts. Let me make a few predictions about what will happen the day after tomorrow: The sun will still rise, birds will sing, fish will swim and grass will grow. People will still be dying in Iraq. Michael Moore will still be a loud-mouthed jerk. John Kerry will still be talking about his service in Vietnam 30 years ago. And thousands upon thousands of straight couples will continue to sign up for �traditional� marriages all across the fruited plain, settle down and have children. The only difference is that some gay couples will also find themselves �married� the day after tomorrow. The world will not come to an end. �Traditional� marriage will not be destroyed. The population will continue to re-populate itself. Armageddon will not have been ushered in. But terrorists will still be trying to kill Americans...gay and straight. Isn�t it time for Congress to get back to frying (literally) these much bigger fish? # # # Chuck Muth is president of Citizen Outreach, a non-profit public policy advocacy organization in Washington, D.C. The views expressed are his own and do not necessarily reflect the views of Citizen Outreach. He may be reached at [EMAIL PROTECTED]
