KBH Responds to One of My Questions

If you are a regular reader of this blog (and I think there may be at least one or two of you), then you know about my attempts to get a statement from Sen. Hutchison’s office concerning the Federal Marriage Amendment and the Voting Rights Act extension. I initially contacted KBH’s office via e-mail on May 24, and there was some subsequent telephone contact. Finally, this past Saturday, I received a response.

KBH was a cosponsor of the Federal Marriage Amendment, but she did not sign on as a cosponsor of the VRA extension legislation. I specifically asked her whether she supported the VRA extension and why she felt the Federal Marriage Amendment was worthy of cosponsoring. The response I received addressed the marriage amendment, but it did not address the VRA extension at all, although KBH did vote for the extension last week (along with 97 other senators). Here is the full text of her response:

Thank you for contacting me regarding same-sex marriages. I welcome your thoughts and comments on this issue.

Marriage laws have historically been the responsibility of state governments, and I generally oppose federal government intrusion into matters of state authority. Periodically, however, one state’s action can have serious and far-reaching implications for other states, particularly because our Constitution requires states to give full faith and credit to the laws of other states.

Based on the inconsistent application of law, Senator Wayne Allard (R-CO) has introduced S.J. Res. 1, the Federal Marriage Amendment. The bill would amend the Constitution to define marriage in the United States as consisting only of the union of a man and a woman. I am a cosponsor of this legislation because I believe our laws should be applied even-handedly, not created by judges. Senator Allard’s legislation does not impact a state’s right to determine benefits in civil unions or other partnership benefits.

When considered by the Senate, S.J. Res. 1 failed to receive the necessary votes to invoke cloture by a 49-48 vote. Should this legislation once again come before the full Senate, you may be certain I will keep your views in mind.

I appreciate hearing from you and hope you will not hesitate to keep in touch on any issue of concern to you.

The first thing that jumps out at me is that KBH actually mentions the full faith and credit clause of the U.S. Constitution, which states that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial proceedings of every other State[.]"

Under the full faith and credit clause, if I sued somebody in California and received a judgment, and that person then moved to Florida, I can try to enforce the judgment in Florida. Florida has to give that judgment the same credit it would give a judgment rendered by a Florida court.

Now, say that a same-sex couple gets married in Massachusetts and later moves to Texas. If an issue later arises concerning whether the couple is lawfully married (maybe one partner died and there is an inheritance question), could one claim that since the marriage was a lawful public act or proceeding in Massachusetts, Texas has to recognize the marriage under the full faith and credit clause? Texas and many other states have passed DOMA statutes (Defense of Marriage Act) to address that very question. There is also a federal DOMA (which Pres. Clinton signed into law). The DOMA laws are statutory, however. Statutes can’t violate the Constitution, and the DOMA laws are arguably unconstitutional under the full faith and credit clause.

This, it seems to me, is the real motivation behind the push for a federal marriage amendment. Social conservatives fear that DOMA laws will be declared unconstitutional at some point, and states such as Texas will have to recognize same-sex marriages that occurred in other states, even if Texas law doesn’t allow for same-sex marriages to take place in Texas.

I was also struck by the statement that S.J. Res 1 would "not impact a state’s right to determine benefits in civil unions or other partnership benefits." This is a carefully worded sentence designed to soften KBH’s hard right stance on this issue. Should I assume that KBH would support civil unions or other partnership benefits. Well . . . no. S.J. Res. 1 states:

Marriage in the United States shall consist only 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 the union of a man and a woman.

It appears to me that under S.J. Res. 1, states would still be able to prohibit civil unions and deny partnership benefits and other "legal incidents" of marriage to same-sex couples. If a state determined that it would not allow civil unions or other partnership benefits, would same-sex couples have any legal recourse? If the issue is only same-sex marriages and not civil unions, then the amendment should be better worded. Of course, in my opinion, the amendment shouldn’t be passed at all.