Lining up to fight "the forces of evil"

The religious right will mount a scorched-earth battle against the Massachusetts decision to permit same-sex marriage. And the White House may join in.

Published November 20, 2003 12:58AM (EST)

For conservative Christians, it's got to feel like the walls are closing in. In June, the United States Supreme Court struck down laws that criminalized oral and anal sex between consenting homosexuals. In August, the Episcopal Church appointed an openly gay man to serve as a bishop. And Tuesday, the Massachusetts Supreme Judicial Court ruled that the Commonwealth cannot deny homosexual couples the right to marry.

"It's a challenge holding back the forces of evil," the Rev. Louis Sheldon, head of the ultraconservative Traditional Values Coalition, told Salon Tuesday. "One of the responsibilities of the church is to be a resisting force, and I feel like a resisting force right now against those who would like to call evil good."

But Sheldon and his brethren are not afraid. They say they've got God, the president and the Republican Party on their side. While gay-rights activists hailed the Massachusetts ruling as an opportunity for gay couples to make the same commitments and enjoy the same rights as everyone else, activists on the religious right -- and their allies in the Republican Party -- began work to turn their defeat in Massachusetts into a victory in the presidential election next November.

With a large majority of voters opposed to gay marriage, the right sees in the issue a wedge they can use to separate Democratic candidates from voters otherwise inclined to support them. None of the major Democratic contenders actually supports gay marriage -- they all back at least a state's right to offer "civil unions" to gay partners -- but the right is confident that it's got a winning issue regardless.

"All of the Democrats have favored counterfeiting marriage in one way or another," said Bill Murray, a spokesman for conservative Family Research Council. "Any candidate who wants to receive the votes of pro-family Americans will have to be ready and willing to mount an unwavering and unapologetic defense of marriage."

The White House issued a statement making just such a defense Tuesday, although it stopped short of explicitly endorsing the anti-gay-marriage constitutional amendment that religious groups are pushing. Democrats speculated that Bush is holding his fire for the time being, hoping that his underlings can mount a full-scale attack on the "gay agenda" while he stays above the fray, clinging to whatever remains of his "compassionate conservative" campaign theme. Bush, a spokeswoman for former Vermont Gov. Howard Dean said Monday, doesn't want "to get his hands dirty."

Activists on the religious right feel no need for hesitation.

Members of the Christian Coalition of America are already working to build support in the House of Representatives for a constitutional amendment that would ban gay marriage nationwide. Representatives of the Traditional Values Coalition are working with Republicans to introduce an even more stringent amendment in the Senate. And Democrats are bracing for an anti-gay onslaught to come -- if not directly from Bush, then from those who do his bidding -- as Republicans seek to peel moderate voters away from Democratic candidates.

The coming year is going to be all "about gay marriage," former Democratic Sen. Max Cleland told Salon Tuesday. Cleland, a war hero who lost his seat in the Senate to a Republican smear campaign that painted him soft on terrorism, predicted that Republicans will use the gay marriage issue to "trash" the Democrats running for president. "It'll be slime and defend, as it always is," he said. "And it will be the ugliest political campaign, aboveboard and below board, in the history of the country."

With its 4-3 decision Tuesday, the Massachusetts Supreme Judicial Court held that the Massachusetts Constitution prohibited the Commonwealth from denying homosexual couples the right to wed. The majority explained that the Commonwealth's granting of marriage licenses, and its recognition of marriage more generally, is a governmental function like many others -- the provision of a benefit that cannot constitutionally be offered to one group of people but not another unless "an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class."

The majority concluded that no "impartial lawmaker" could reach such a conclusion. In defending its marriage laws against a challenge brought by seven gay couples, attorneys for the Commonwealth of Massachusetts argued that allowing only heterosexual marriage serves three legitimate governmental goals: It provides a "favorable setting for procreation," it ensures the "optimal" setting for raising children, and it preserves limited state and private resources. The majority rejected each of these arguments as well as a fourth pressed by several religious and conservative groups that joined the case -- that allowing gay marriage would undermine, trivialize or destroy the institution of marriage.

The majority dismissed the latter argument in language that mirrored the human dignity theme that Justice Anthony Kennedy used -- and Justice Antonin Scalia later mocked -- in the U.S. Supreme Court's decision in June overturning Texas' sodomy laws. "Recognizing the right of an individual to marry a person of the same sex," the Massachusetts majority wrote, "will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race. If anything, extending civil marriage to same-sex couples reinforces the importance of marriage to individuals and communities. That same-sex couples are willing to embrace marriage's solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit."

The three dissenting justices wrote three separate dissenting opinions. They argued that the majority was ignoring history and usurping the right of the Legislature to define marriage. And, they argued, existing law doesn't discriminate at all. Homosexuals are free to marry just like anyone else, they said, so long as they marry someone of the opposite sex. Dissenting Justice Francis X. Spina wrote: "All individuals, with certain exceptions not relevant here, are free to marry. Whether an individual chooses not to marry because of sexual orientation or any other reason should be of no concern to the court."

Because the Massachusetts decision is based on the court's interpretation of the Massachusetts Constitution, it cannot be reviewed or reversed by the U.S. Supreme Court; each state's highest court is the final arbiter of the meaning of its constitution. Nor can the Massachusetts Legislature reverse the decision by changing Massachusetts law; as in the federal system, the Massachusetts Constitution trumps other Massachusetts laws.

Thus, the only way for Massachusetts to alter the decision is to begin the two-year process of amending its own constitution -- a step that Republican Gov. Mitt Romney endorsed Tuesday. In theory, the federal Defense of Marriage Act, which Congress approved overwhelmingly and Bill Clinton signed in 1996, would allow other states to ignore gay marriages recognized in Massachusetts. But the Defense of Marriage Act raises serious constitutional questions and might not withstand judicial review if challenged -- particularly in light of the relatively gay-friendly precedent set by the Supreme Court in the Texas sodomy case.

Even before the Massachusetts decision came down, Republicans were planning their response -- a constitutional amendment that would prohibit any state from recognizing gay marriage. In a memorandum distributed in July, Senate Republican leaders said that Republicans should strike quickly on the gay marriage issue. "When same-sex marriage is legalized in Massachusetts, thousands of homosexual couples from in and out of that Commonwealth will rush to marry," the memorandum said. "Any later attempts to 'react' to the growth of same-sex marriages will then be construed as an effort to deprive those homosexual couples of their legal status."

The memorandum predicted that homosexual activists would flock to Massachusetts to marry, then fan out across the country in order to bring lawsuits challenging other states' laws when those states refused to honor their marriages. Evan Wolfson, the leader of the Freedom to Marry project, discredited predictions of such concerted action. He said that, in the wake of the Massachusetts decision, gay couples will do what straight couples have done all along. "They will interact with other people who will have to ask themselves, 'Am I going to discriminate against this married couple of treat them as they are?'" Wolfson said. "Many businesses and many states will do the right thing. Others will discriminate, and married couples will see a patchwork of reactions. If they encounter discrimination, that will have to work itself out."

The Massachusetts ruling followed by just months a similar ruling by the highest court in Ontario, Canada. Indeed, the Massachusetts majority quoted the ruling in its own opinion. In the United States, the Massachusetts decision makes that state the first one to recognize gay marriage. Dean signed a civil union bill into law while serving as governor -- and then had to wear a bulletproof vest during campaign stops shortly after doing so. Courts in Hawaii and Alaska have held that those states cannot deny marriage rights to homosexuals, but state constitutional amendments subsequently reversed those rulings. A lawsuit similar to the Massachusetts case is now pending in New Jersey.

Wolfson hailed the Massachusetts decision as a major victory for gay couples. "It means that families, including couples with kids, will be able to take on the protections and responsibility of marriage and have the security and support that civil marriage means," he said.

On the right, the decision drew criticism from virtually every prominent Republican, including Bush, Senate Majority Leader Bill Frist and Sen. Rick Santorum, who said that "every civilization since the beginning of man has recognized the need to protect marriage as the union of one man and one woman."

For the Republicans, the good news from Massachusetts is that they've still got time to get started on their political response. The Massachusetts court said it would give the Legislature 180 days to respond to the ruling before it would order the first gay marriage licenses issued.

Conservative Christians say they will use that time to push hard for a federal constitutional amendment. Roberta Combs, president of the Christian Coalition of America, said Tuesday that her group is working closely with Republican Rep. Marilyn Musgrave of Colorado to build support for the anti-gay-marriage constitutional amendment she has introduced in the House of Representatives. Combs said the amendment is necessary to prevent liberal courts from imposing upon Americans an institution that is "not biblical and not the way our founding fathers intended the courts to go."

Meanwhile, Sheldon said his Traditional Values Coalition is working closely with Republican staff of the Senate Judiciary Committee to craft a Senate version of the amendment. He said he hoped such an amendment would be introduced in the coming days -- likely by Kansas Sen. Sam Brownback or Oregon Sen. Gordon Smith, both Republicans. Sheldon said the Massachusetts decision will force elected officials and candidates throughout the nation to have "come to Jesus" discussions about morality, and that his group and others would make sure that gay marriage is a "front-burner" issue in the 2004 presidential campaigns. "The horses are out of the stalls, and the race has begun," he said.

The question, though, is just how far George W. Bush will go to embrace the anti-gay message. The White House issued a brief statement by the president Tuesday in which he condemned the Massachusetts decision as violating "a sacred institution between a man and a woman." And while the statement indicated that Bush would work with "congressional leaders and others to do what is legally necessary to defend the sanctity of marriage," it stopped short of endorsing the only thing that Bush really can do -- work for passage of the constitutional amendment.

"You're going to see Bush torn in a couple of different directions on this thing," said a spokesman for one Democratic presidential candidate. "The Republicans are going to enjoy watching Democrats squirm on this. But by the same token, how does this fit into Bush's desire to come off as a centrist in the general election next year? It's hard to see him making a big deal about this, but you can see his surrogates doing the dirty work for him."

Democratic National Committee spokesman Tony Welch called on Bush to "tell the Republican Party that hate and vilification are off limits in this campaign," but he wasn't optimistic that Bush would listen. "Do we know they're going to use this? You bet," Welch said. "But we're going to point out every time what the Republican goal is, and that's to divide America."

Despite the political war to come, some gay-rights leaders expressed optimism Tuesday that an apocalypse can be averted. Wolfson said the Massachusetts decision will give Americans a chance to see that the world doesn't end when gay people marry. "The country will see that the sky doesn't fall when gay couples take on this commitment," Wolfson said. "People will say the sky is falling, but people with common sense will see that it really isn't."

Still, Wolfson said, that won't stop Republicans from attempting to make political gains from the issue. "If the right wing has anything to do with this, they'll try to make this an issue in the presidential race," he said. "The right wing is not just anti-marriage for gay people, they're against gay people period. If we were asking for oxygen, they'd be against it."

Salon senior writer Eric Boehlert contributed to this story.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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Bill Clinton Gay Marriage George W. Bush Lgbt