Marriage Amendment Unlikely Soon

Despite the intensifying political furor surrounding gay marriage, supporters of a proposed constitutional amendment restricting marriage to the union of a man and a woman aren’t counting on success anytime soon.

Partisans on both sides of the issue said Congress’ traditional reluctance to alter the fundamental document of American democracy, coupled with the politics of this presidential election year, make it unlikely that a marriage amendment will come to a vote in either the House or the Senate in 2004.

“Congress already has a pretty full plate this year,” a senior Republican congressional aide noted tersely when asked whether an amendment could move forward before the November elections.

To be sure, images of thousands of gays being wed in San Francisco, as well as the recent affirmation by the highest court in Massachusetts of a ruling that gays must be allowed to marry, have galvanized many conservative Christian groups to action. But they say that they know they face a tough battle on Capitol Hill.

That’s what the Founding Fathers intended.

In order to discourage frequent changes, they decreed that a proposed amendment to the Constitution would have to achieve super-majorities -- two-thirds of the vote -- in both chambers of Congress, then win ratification by three-fourths of the states. Thousands of amendments have been proposed, but only 17 since the original 10 in the Bill of Rights have met those high standards.

The longest time from proposal to enactment involved the most recent amendment, the 27th. James Madison proposed the regulation of congressional pay raises to the first Congress, in 1789. But it wasn’t until 1992 that the last of the required number of states ratified it.

“I think it is always a very difficult thing to get an amendment passed,” said Ed Vitagliano, a spokesman for the American Family Assn., a conservative Christian group based in Tupelo, Miss., that supports a constitutional amendment on marriage.

Supporters say their best hope for pushing an amendment through Congress lies in President Bush fighting for it. Some say the president must publicly embrace the effort to energize his conservative base. So far, Bush has not.

Backers of an amendment say White House aides have assured them that a presidential endorsement would come soon. But in his most recent statement on the issue, White House Press Secretary Scott McClellan said only that “we continue to look at events closely and continue to look at this issue very closely.”

Bush’s hesitation, even some amendment supporters say, is at least partly based on a political calculation that his backing could alienate swing voters who might be crucial if the November election is close, as many analysts expect. But his stance is also thought to reflect a presidential reluctance to amend the Constitution.

“Once you publicly say, ‘I support a constitutional amendment,’ that is there until the end of time,” observed Mickey Edwards, a former Republican congressman and former national chairman of the American Conservative Union. Bush, Edwards said, “has been very reluctant to do that.”

Edwards, who teaches at the Woodrow Wilson School of Public and International Affairs at Princeton University, described marriage as “a social customs issue” seen by many as more properly handled by the states, or in federal statutes such as the Defense of Marriage Act, passed by Congress and signed by President Clinton in 1996.

Advocates of a marriage amendment say it is necessary because the Massachusetts Supreme Judicial Court’s ruling may lead to the federal marriage law being ruled unconstitutional. That law defines marriage as a legal union between a man and a woman and says that no state is required to recognize as valid a same-sex marriage sanctioned by another state.

“The House and Senate spoke very clearly in 1996, saying that marriage should be between a man and a woman, and that is what we are trying to solidify in public policy,” said Guy Short, chief of staff for Rep. Marilyn N. Musgrave (R-Colo.). Including California, 38 states -- the number needed to ratify a constitutional amendment -- have laws similar to the Defense of Marriage Act. Two others, Maryland and New Hampshire, have laws barring same-sex marriage that are not based on the federal law.

Musgrave’s proposed amendment states that “marriage in the United States shall consist only of the union of a man and a woman,” and that “neither this [Constitution] nor the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”

Musgrave’s proposal has at least 112 House co-sponsors, and Bush told a recent Republican congressional retreat that he supports the language. But so far, no hearing on it has been scheduled.

One aide to the House Republican leadership, speaking on condition of anonymity, said the effort to move the amendment forward has been slowed by divisions among conservatives over its wording.

Some argue that Musgrave’s amendment leaves open the possibility of civil unions, and they say they want the amendment to ban such unions.

“All of those divisions -- and there’s a couple, that’s right -- are going to dissipate like a piece of ice in the broiling sun’s heat when the president puts his shoulder to the plow,” said the Rev. Louis P. Sheldon, chairman of the Traditional Values Coalition, a conservative group based in Anaheim and Washington, backing the push for an amendment.

But some conservative activists acknowledge that the White House does not seem to share their enthusiasm.

“I think the White House is ambivalent,” said Vitagliano. “I think they wish this thing would go away, although they know that for more conservative Christian groups, this is a hill to die on, like abortion.”

Despite the possibility that a constitutional amendment may stall, gay activists are worried.

“This is an explosive issue,” said Matt Foreman, executive director of the National Gay and Lesbian Task Force. “We have not, as a community, been able to stop a Defense of Marriage Act or a constitutional amendment from moving forward in any legislature in the country.”

Once the politics are sorted out, there is the process to contend with. There are only two ways to amend the Constitution, and one -- a constitutional convention called by Congress -- has never been tried.

Almost all the amendments that have been ratified deal with the relationship between the government and the people or among the branches of government, or grant fundamental rights. The 13th Amendment, for example, freed the slaves. The 15th Amendment ensured that no one may be denied the right to vote because of his race.

Amendments on hot-button issues -- banning flag burning, requiring a balanced budget or allowing prayer in school -- have consistently failed to garner the required super-majorities in Congress. The Equal Rights Amendment, which would have guaranteed women “equality of rights,” was introduced in Congress in 1923 and ultimately was adopted by both chambers in 1972, but it was not ratified by three-quarters of the states.

“Other countries have constitutions that are quite detailed, almost like statutes,” said Virginia Sloan, director of the Constitution Project of Georgetown University’s Public Policy Institute. “The founders didn’t want ours to be like a statute that is amended willy-nilly.”