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Americans' Moral and Legal Take on Gay Marriage


From NPR News, this is NEWS AND NOTES. I'm Farai Chideya. I'm sitting in for Ed Gordon.

Last week, the Senate voted on whether to ban gay marriage. The Constitutional Amendment was a no go. But advocates for banning gay marriage, or preserving what they call, traditional marriage, say they're not done fighting yet. President George Bush supports those advocates. But how big a role do African American voters play in this debate and how are Americans evaluating the issue, over all - in terms of legal precedent or moral teachings?]

First, we'll explore the legal aspect. Joining us from our NPR bureau in the nation's Capitol, is John Brittain, he is chief counsel and senior deputy with the Lawyers' Committee for Civil Rights Under the Law. His group urged the Senate to oppose the effort to amend the United States Constitution.

John, glad to have you with us.

Mr. JOHN BRITTIAN (Chief Counsel and Senior Deputy, Lawyers' Committee for Civil Rights Under the Law): Thank you. Pleasure to be here.

CHIDEYA: So explain the position that your group is taking on the legalities of this issue.

Mr. BRITTIAN: The United States Constitution is our founding document. Since the adoption of the Bill of Rights back in 1791, the Constitution has only been amended 17 times, and generally in order to promote our democracy, such as the presidential succession or to provide rights.

In this case, the definition of marriage as a union between a man and a woman, does not extend any rights that does not exist. Rather, the real purpose of the amendment, is to deny gay people - same sex persons - the right to marry. The Constitution has never been used in order to deny or limit anyone's rights.

Therefore, we feel that using the Constitutional amendment for political purpose is ill-suited for our founding document.

CHIDEYA: Now, when you say that this Amendment would deny rights to a specific group, what kinds of right are we talking about? I mean, marriage is many different things. What are you specifically talking about in a legal sense?

Mr. BRITTIAN: In a legal sense, the regulation of marriage has generally been a state concern. It has not really risen to a federal concern. We are all aware that in the famous constitutional case of Loving v. Virginia, around 1958, the United States Supreme Court declared that it was a violation of equal protection to bar persons from different races for getting married.

So, the general legal principle involved with marriage, is equality. And the particular quality is between the rights of opposite sex persons to get married with the rights of same sex persons to get married. The Massachusetts Supreme Court for an example said that it was a violation of the Massachusetts equal protection laws to ban same sex marriages.

CHIDEYA: So gays and lesbians can get married in Massachusetts, but do other states recognize those marriages? And what would this debate do to that whole issue?

Mr. BRITTIAN: There is a law on the books right now, called the Defense of Marriage Act, or DOMA, that provides that no state is required to recognize the same sex marriage performed in other states. However, that statute has not really been tested under another doctrine known as the full faith and credit clause. Under the full faith and credit clause, sister states or sibling states are required to recognize reasonable laws from other states.

That's why someone who gets married in Washington D.C. is entitled to recognition of being married in California. California recognizes all of other state marriage laws. The DOMA law is supposed to stop that, in this case, but many scholars believe that it would violate the full faith and credit clause because it singles out just one law that other states are not required to recognize.

CHIDEYA: I'm going to ask this final question of our next guest, as well. In America, people believe all sort of things; some people believe there are aliens at Roswell; some believe in polygamy; some believe in white supremacy. How should the government distinguish between individual belief and the law?

Mr. BRITTIAN: The government does recognize certain beliefs, that persons have the right to those beliefs. However, the government doesn't make those beliefs a part of the law unless they satisfy some broader public purpose, and so long as they do not violate any other constitutional rights.

So far, there is no federal constitutional right to same sex marriage. Just like there's no there federal right to prohibition against discrimination based upon sexual orientation. And nevertheless, to use the Constitution, though, to really express what some believe is a violation of either their religion about same sex marriage or just violation of their offensive behavior about same sex marriage should not be made a constitutional amendment.

CHIDEYA: John Brittain is chief counsel and senior deputy with the Lawyers' Committee for Civil Rights under Law. Thank you so much for joining us.

Mr. BRITTAIN: You're welcome. Transcript provided by NPR, Copyright NPR.