For Better Or For Worse?

By Richard Lacayo

Two weeks after it started, the parade of gay newlyweds in San Francisco, now more than 3,400 couples and counting, just keeps on coming. So many said "I do" in city hall last week that the marriage of Rosie O'Donnell to her longtime partner Kelli Carpenter became just one more nuptial, though maybe the one that attracted the most photographers. The city's Gay Men's Chorus all but went hoarse singing The Star-Spangled Banner and Chapel of Love to an endless line of couples, with assorted children and parents and friends cheering them on. "When you have the opportunity to watch and hear a ceremony, you feel the real passion, the solemnity, the commitment," says Susan Leal, the city and county treasurer, who officiated at many of them. "If that was present in a lot of the marriages we have in this country, we wouldn't have as much divorce, I bet."

But by now the outburst of semi-legalized gay marriages has spread to places that have never been known as gay capitals, or even as cities. In New Mexico's Sandoval County, 67 gay couples were granted marriage licenses last week until the state attorney general ordered the county clerk to stop. In tiny New Paltz, N.Y., Jason West, the Green Party mayor, presided over the weddings of two dozen gay couples. George Pataki, the state's Republican Governor, quickly asked Eliot Spitzer, the Democratic state attorney general, to halt them. Spitzer refused. Meanwhile, Daniel Stewart, the mayor of not-so-big Plattsburgh, N.Y., says he supports the idea of gay marriage too. That might be expected, since he's gay. Then again, he's also a Republican.

Any way you look at it, the once mostly abstract debate over gay marriage isn't that abstract anymore. And it's not even May 17 yet, when Massachusetts officials must start issuing marriage licenses to same-sex couples throughout the state, as ordered by its highest court. In a Gallup poll taken just last month, gay marriage ranked dead last among 14 issues of concern to American voters. But that was before pictures of same-sex postnuptial smooching forced the issue into the hearts and minds and TV sets of people whose prior exposure to the idea may have been limited to that thing Madonna did with Britney Spears.

And it was before George W. Bush's abrupt announcement last Tuesday that he had decided to support a constitutional amendment to ban same-sex marriage. "After more than two centuries of American jurisprudence and millennia of human experience," said Bush, "a few judges and local authorities are presuming to change the most fundamental institution of civilization." With that, the President put himself firmly in the camp of his restless conservative base. Not incidentally, Bush also opened the way to make gay marriage the ultimate wedge issue in November, even though, when all is said and done, Bush and Democratic front runner John Kerry are not that far apart on the issue. They both oppose gay marriage and would oppose extending the 1,138 federal rights and privileges to gay couples, but support the right of states to grant civil unions.

Though on Tuesday the President did not throw his support behind any particular language, right now there's just one proposed gay-marriage amendment before Congress. Introduced last year by Representative Marilyn Musgrave and Senator Wayne Allard, both Republicans of Colorado, it would define marriage as "the union of a man and a woman." Debate is heating up about whether the wording of their measure would also forbid civil unions, which the President said last week states should be permitted to perform. Because of language in its second sentence saying that neither states nor the Federal Government can be required to confer upon unmarried couples marital status "or the legal incidents thereof," many legal scholars say the amendment would effectively ban such unions. "If you have to guess what something means, it probably doesn't belong in the Constitution," says Evan Wolfson, executive director of the pro--gay-marriage group Freedom to Marry. "This amendment is being sold deceptively to the American people."

Though Bush had been voicing concern for weeks over the Massachusetts court decision, he apparently decided to support an amendment just a day or two before he made his announcement. "He did so reluctantly," says a top aide. "He felt, as others did, that the process was not bringing clarity but becoming more chaotic. The President did not provoke this. He was responding to something."

Many Republicans had been hoping all the same that Bush would sidestep the controversy and allow states to settle the issue in their different ways under the protective umbrella of the Defense of Marriage Act (DOMA), the 1996 federal law that says no state is obliged to recognize same-sex marriages performed by another state. Some conservatives fear that the Supreme Court--or at least some future, more liberal configuration of the court--might overturn that law, especially in light of the challenges that are certain to arise once gays who have wed legally in Massachusetts seek to have other states recognize their marriages.

Legal scholars are divided over whether DOMA is vulnerable. It is conceivable that the Justices could rule that the law violates the Constitution's full faith and credit clause, which generally requires states to recognize one another's laws and state court judgments. But states have long been allowed to refuse to recognize other states' marriages that violate their own social policies. For instance, for a time some Southern states refused to accept interracial marriages performed elsewhere.

The Senate Judiciary Committee will hold its first hearing on the amendment idea this week. And after that? Well, after that, no amendment. It has almost no chance of being passed by Congress this year. Republican leaders admit in private that they don't have anything like the two-thirds vote needed in either chamber to send it along to the states. The Bush announcement took them almost completely by surprise. G.O.P congressional sources tell TIME that House Speaker Dennis Hastert first heard about it when the White House phoned his office just 15 minutes before the President appeared on TV. Hastert, who opposes gay marriage but suspects that the fight over a constitutional ban could be a quagmire for Republicans, refused afterward to speak publicly to reporters.

Hastert's silence was better than the explicitly cool reception that Bush's announcement got from other leading Republicans on Capitol Hill. Senate majority leader Bill Frist was highly skeptical of its chances for passage. So was House majority leader Tom DeLay. David Dreier, the powerful chairman of the House Rules Committee, flatly opposes amending the Constitution, arguing that the question of gay marriage instead "should go through the courts."

States that do not want gay marriage have pursued their own routes to block it. Thirty-nine have passed laws making clear they would not recognize gay marriages or civil unions from other states. At least 12 are debating laws to ban same-sex marriages, strengthen existing bans or bar same-sex couples from receiving marriage benefits. Hawaii, Alaska, Nebraska and Nevada have gone even further, amending their constitutions to ban same-sex marriages, and 21 other other states are thinking of doing the same.

Marriage is important to gays for the same reason it's important to straights--not only for romantic reasons but also because a marriage license opens the door to a multitude of federal and state benefits granted to wedded couples, including inheritance rights and Social Security survivor's benefits. That's one reason the consolation prize of civil unions is unsatisfying to gay activists, unless it comes with a document that opens the same doors as a marriage license. "Call it, perhaps, a marriage, family and partnership license," says Elizabeth Birch, a former executive director of the Human Rights Campaign, a gay-rights organization.

To uncouple the two components of marriage, civil and religious--the latter being the basis of much of the reaction against gay marriage--some would prefer to see a legal regime in the U.S. like those of many European nations, where couples marry at city hall in a civil ceremony. They are then free to wed in a house of worship as well, which is equally free not to marry them if it violates the traditions of that faith.

Whether a federal amendment emerges from Congress, debate over the issue ensures that gay marriage will remain an explosive talking point straight through November, and in the meantime will produce some political contortions. Kerry, for instance, is one of only 14 Senators who voted against DOMA, which he described as an instance of "gay bashing on the floor of the United States Senate." Yet on Good Morning America last week Kerry said a federal amendment was unnecessary because DOMA shielded states that did not want to accept gay marriage--which put him in the awkward position of pointing out the usefulness of a law he voted against. Bush's position has been adjustable too. In a 2000 presidential debate he said states "can do what they want" on gay marriage. And Vice President Dick Cheney, whose daughter Mary is openly gay, likewise said in that year's vice presidential debate that the issue of gay marriage should be decided by states, though earlier this year he said he would support the Administration's stand.

Democrats are also deeply suspicious that, as Election Day nears, Republicans might try to force a vote on the amendment bill, even a vote that they know they will lose, as a way to put pressure on congressional Democrats in tight races. A perfect date might be just before the Democratic National Convention, scheduled to start July 26 in gay-friendly Boston. But an amendment vote could hurt Republicans as well. The party's pollsters show that nearly two-thirds of Americans oppose gay marriage in principle, but are evenly split on the wisdom of a constitutional amendment. It tells you something about the local complexities of the gay-marriage issue that Colorado, the home state of both sponsors of the amendment proposal, has a law banning gay marriage but also has three cities--Denver, Aspen and Boulder--where gays can affirm their unions as domestic partners.

Republicans believe the number of swing voters this year, usually around 15%, has shrunk to no more than 7%, many of them Catholics who might be receptive to an amendment. What matters most to Karl Rove, the President's chief political adviser, is another number: 4 million. That's how many evangelical Christians he believes voted in 1996 but did not turn out in 2000 because the Bush campaign didn't inspire them. Rove will do anything now to light a fire under them. Skeptical Democrats think the fire is called gay marriage. But many swing voters are also the suburbanites who abandoned the G.O.P. in the past when it got too wild-eyed about culture wars. "If they spend so much of their campaign talking about gay marriage," says Kerry press secretary David Wade, "it puts them back in 1992 at the Republican convention in Houston with Pat Buchanan."

That might not seem so bad to the loose coalition of conservative groups that calls itself the Arlington Group (for the Virginia city where they first convened), which began strategizing on gay marriage last June, not long after the landmark Supreme Court decision that struck down a Texas anti-sodomy law and, by extension, all state laws that criminalized homosexual acts. In his 63 majority opinion, Justice Anthony M. Kennedy insisted that the case "does not involve whether the government must give formal recognition to any relationship homosexual persons seek to enter." In a concurrence, Justice Sandra Day O'Connor wrote that the "traditional institution of marriage" was not in play. But in his furious dissent, Justice Antonin Scalia warned that the ruling would nonetheless lead to challenges not only to state laws that ban same-sex marriage but also to those that prohibit "adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity." And, for that matter, says Don Wildmon, president of the Mississippi-based American Family Association, polygamy. "I wonder why there were no three people wanting to marry in San Francisco," he says. "Why two? Why not three?"

Dedicated gay-marriage opponents still doubt that Bush will do much to push the amendment in public or in private. The Traditional Values Coalition, headed by the Rev. Louis Sheldon, will send out a fund-raising mailing called Homosexual Alert Fund to half a million households this week. Sheldon and his allies also hope to persuade sympathetic campaign donors to contact legislators and make clear that they will withhold money from candidates who fail to support a ban. "This will be the No. 1 issue in the next election," Wildmon predicts. "I think the average American has been slapped in the face by this."

All the same, it's not easy to tinker with the Constitution. Only 17 amendments have been added since the 10 in the Bill of Rights were tacked on in 1791. The most recent came in 1992, when Michigan became the 38th state to ratify a measure barring Congress from enacting any pay raises for itself that would take effect before the next general election--an idea first introduced in 1789. Oft-proposed amendments to require a balanced budget, permit prayer in public schools and ban flag burning have never made it out of Congress. The Equal Rights Amendment, which was meant to invalidate state and federal laws that discriminate against women, did emerge from Washington, only to grind to a halt in state legislatures in a process that took 10 years.

Is the nationwide mandate of constitutional change the best way to go? Thirty-one years ago, in Roe v. Wade, the Supreme Court imposed a single standard on abortion across a nation still groping toward diverse solutions on that divisive issue. We all know how well that worked. Now the images of gay and lesbian couples, ecstatic about getting married, are beaming across the nation. "They're putting the human face" on the issue, says Bruce Nelson of Lawrenceville, Ga., the father of a gay son, 23, and a lesbian daughter, 26. "It's not lawsuits with a bunch of lawyers arguing. I think a lot of people who maybe aren't decided, when they see that human element, probably will be swayed by it." That's true, although those same images are asking a wary nation to confront an issue it was happy to leave aside, and there's a chance politicians on both sides of the divide could be punished for it. --Reported by Perry Bacon Jr., John F. Dickerson, Viveca Novak and Douglas Waller/Washington; Chris Taylor and Laura Locke/San Francisco; Anne Berryman/Athens, Ga.; and Barbara Maddux/New York with other bureaus

With reporting by Perry Bacon Jr., John F. Dickerson, Viveca Novak and Douglas Waller/Washington; Chris Taylor and Laura Locke/San Francisco; Anne Berryman/Athens, Ga.; and Barbara Maddux/New York with other bureaus