WASHINGTON — Five Democratic senators joined forces with a gay Republican law professor at a Senate hearing last week to dispute the need for a constitutional amendment prohibiting gay marriage.

“[A]n amendment banning same-sex marriage is a solution in search of a problem,” said University of Minnesota Law School Professor Dale Carpenter, a member of the gay GOP group Log Cabin Republicans.

“Federal and state laws already prevent the court-ordered imposition of nationwide same-sex marriage for the foreseeable future,” Carpenter said. States should be allowed to adopt same-sex marriage if they choose to do so, he argued.

Sen. John Cornyn (R-Texas), chair of the Senate Judiciary Subcommittee on the Constitution, said he called the Sept. 4 hearing to discuss whether the anti-gay Defense of Marriage Act of 1996 could withstand a ruling by state or federal courts legalizing same-sex marriage.

The hearing took place four days before gay rights leaders and their supporters from civil rights groups met Sept. 8 in Washington to discuss strategy for advancing the cause for civil marriage for same-sex couples and opposing a constitutional amendment. The meeting was closed to the press and the public.

Gay civil rights attorney Evan Wolfson, who founded the New York-based group Freedom to Marry, declined comment on what was said or who attended the meeting, saying the conclave was a “routine” gathering of those committed to advancing the cause of protecting gay families.

Gay activists had expressed concern that Cornyn, an opponent of gay marriage, would stack the Senate hearing with witnesses who oppose gay rights and support the Federal Marriage Amendment, a proposed constitutional amendment that would forbid states from adopting same-sex marriage.

But Cornyn was the only one of the subcommittee’s five-member Republican contingent to show up for the hearing. Each of the panel’s four Democrats plus Sen. Patrick Leahy (D-Vt.), the ranking Democrat on the full Senate Judiciary Committee, attended and spoke out against the constitutional amendment.

Although each of Cornyn’s four invited witnesses — a minister, two lawyers and a conservative columnist — said a constitutional amendment was needed, the Democratic senators and their two invited witnesses each called for equal rights for same-sex relationships.

In addition to Carpenter, the other witness invited by Democrats was Keith Bradkowski, a California resident whose domestic partner died in the Sept. 11 terrorist attacks, who gave an account of how not having a legally sanctioned relationship added to his suffering. Bradkowski’s partner, flight attendant Jeff Collman, was among those killed when two jetliners crashed into the World Trade Center.

“After his death, I was faced not only with my grief over losing Jeff — who was indeed my better half — but with the painful task of proving the authenticity of our relationship over and over again,” Bradkowski told the panel. “With no marriage license to prove our relationship existed, even something as fundamental as obtaining his death certificate became a monumental task.”

Democrats question purpose of hearing
Sen. Edward Kennedy of Massachusetts, one of the Democratic members of the panel, criticized the decision to hold the hearing, saying the Senate was consumed with work on other, “more important” issues such as the war in Iraq, problems with the nation’s electric power grid and air pollution regulations. Kennedy called the proposed amendment unnecessary and a form of blatant discrimination against gay couples.

“What in the world are we doing here considering this constitutional amendment?” he asked.

Cornyn said the hearing was needed to help the Senate assess whether further action is necessary to “protect” the institution of marriage through the Defense of Marriage Act, known as DOMA.

DOMA defines marriage under federal law as a union between a man and a woman and allows states to refuse to recognize same-sex marriages approved by other states. Congress passed the act by a lopsided margin and President Clinton signed it.

That law’s lead sponsor, former U.S. Rep. Bob Barr (R-Ga.), has publicly lobbied against passage of a constitutional amendment, arguing that the issue ought to be left up to individual states, which have always adopted marriage and divorce laws in the past.

“The question before us now is whether the popular and bipartisan legislation will remain the law of the land as the people intend, or be overturned by activist courts,” Cornyn said. “I believe it is our duty to carefully consider what steps are needed to safeguard the traditional understanding of marriage, and to defend the Defense of Marriage Act.”

The freshman Texas senator said the recent U.S. Supreme Court decision overturning state sodomy laws based on grounds of privacy rights might be cited by courts to strike down state marriage laws that ban same-sex marriage. Cornyn said he intended to limit the hearing to assessing the status of DOMA rather than consider a constitutional amendment banning same-sex marriage.

However, nearly all of the Democratic senators, including Sen. Russell Feingold (D-Wis.), the ranking Democrat on the subcommittee, said any hearing on the potential failure of DOMA could not avoid consideration of a constitutional amendment.

Gay rights attorneys say the broadly worded amendment, which would forbid states from legalizing same-sex marriage, also would likely be interpreted by courts to repeal existing domestic partner laws and prohibit new ones. Some legal experts say the proposed amendment would also overturn Vermont’s landmark gay civil unions law.

The witnesses invited by Cornyn spoke in favor of the amendment, saying DOMA was certain to be overturned by “activist” courts.

Attorneys Gregory S. Coleman, the former solicitor general for the state of Texas, and Michael P. Farris, a fundamentalist Christian who ran unsuccessfully for the post of lieutenant governor of Virginia, said recent court rulings pertaining to gay rights indicate DOMA would be declared unconstitutional.

GOP witnesses fear DOMA is at risk
The two conservative attorneys cited the 1996 case of Roemer vs. Evans, in which the high court overturned an anti-gay ballot measure in Colorado on grounds that the law violated the 14th Amendment’s equal protection clause and exhibited “animus” toward homosexuals.

The attorneys also pointed to this year’s Supreme Court decision of Lawrence vs. Texas, which overturned state laws that made same-sex sodomy a crime. The Lawrence decision held that such laws violate constitutionally protected privacy rights and must be motivated by some legitimate governmental interest other than moral disapproval of homosexuality.

“It is my professional opinion that, in the absence of some intervening event, the Supreme Court’s evolving standards of liberty and privacy will result in constitutional protection for same-sex marriages within the next five to 15 years,” Coleman said.

Farris said he believes DOMA is constitutional and can be justified under the Constitution’s full faith and credit clause, a provision that gay rights attorneys cited in the past as grounds for overturning DOMA. But similar to Coleman, Farris cited current trends in legal scholarship and writings, along with the Romer and Lawrence cases, as evidence that DOMA will be overturned.

Maggie Gallagher, an author and columnist who specializes in marriage and family issues, told the subcommittee that legalization of gay marriage would severely damage the institution of marriage as a “child-rearing institution.”

Rev. Ray Hammond, a Boston physician and pastor of the Bethel African Methodist Episcopal Church, said legalizing gay marriage would “erase the legal road map to marriage and the family from American law.”

Carpenter called the proposed constitutional amendment a form of “overkill,” saying it would destroy the nation’s longstanding principle of leaving it up to states to decide family-related law.

“Whatever one thinks of same-sex marriage as a matter of policy, certainly no person who cares about our Constitution should support this unnecessary, radical, anti-democratic, and overly broad departure from the nation’s traditions and history,” Carpenter said.

Full faith and credit could protect DOMA
Carpenter disputed the assertions of Coleman and Farris that the Romer and Lawrence decisions would prompt the Supreme Court to overturn DOMA. Carpenter, who described himself as a conservative who supports states’ rights, argued that the Constitution’s full faith and credit clause would most likely not be found to be in conflict with DOMA.

At the time Congress passed DOMA, many gay rights attorneys took the opposite view, saying the full faith and credit clause would force all states to recognize gay marriages approved in any single state.

The clause in question, which is part of Article 4, Section 1 of the U.S. Constitution, states, “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” The clause adds, “And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”

Carpenter said the language giving Congress a role in establishing ground rules for the clause as well as a long established legal precedent for giving states an exemption to the clause on matters pertaining to “public policy” indicates that DOMA is not in jeopardy any time soon.

Cornyn’s Constitution subcommittee consists of five Republicans and four Democrats. Sen. Jeff Sessions (R-Ala.), a member of the full Judiciary Committee, dropped by the hearing for a few minutes before leaving without questioning witnesses.

The four Democratic members attended all or most of the hearing and spoke out strongly against the Federal Marriage Amendment. Senator Patrick Leahy (D-Vt.), the ranking member of the full Judiciary Committee, also attended the hearing. The other Democrats attending were Feingold, Kennedy, Charles Schumer (D-N.Y.) and Richard Durbin (D-Ill.).

The Republican members who did not attend were Sens. Jon Kyl (R-Ariz.), Lindsey Graham (R-S.C.), Larry Craig (R-Idaho) and Saxby Chambliss (R-Ga.).

Cornyn said his GOP subcommittee colleagues were unable to attend because of conflicting events, including other hearings.

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