Media Room:

The Philadelphia Inquirer: The Elephant in the Room: Boldly defending marriage

07/14/10

Few politicians have the courage to protect the institution from the courts.
By Rick Santorum

It seems fitting that my last regular column here concerns a cultural issue, as this newspaper's editorial page and I often disagree on such issues.

Political consultants warn candidates to stay away from these issues because they are so personal and emotionally charged. The abortion debate is one on which I chose to ignore their advice. The reason: I simply could not square voting to permit the killing of an innocent baby in the womb with the Constitution I swore to defend, the God I try to obey, or the people I pledged to serve.

In 2004, when I was in the Senate, another contentious cultural issue returned to the national scene as a result of a judicial decision. The highest court in Massachusetts ruled that the state's definition of marriage was discriminatory, and it further exercised its raw power by requiring the Massachusetts legislature to change state law.

This was not the first time this happened. In 1993, the Hawaii Supreme Court invalidated its state's marriage law and paved the way for same-sex marriage there.

The concern then was that other courts, using the U.S. Constitution's Full Faith and Credit Clause, would force other states and the federal government to recognize these judicially imposed marriages. In a rare moment of bipartisan accord on such cultural issues, Congress and President Bill Clinton responded by enacting the Defense of Marriage Act to protect states from further judicial assault.

The later Massachusetts ruling worried advocates of traditional marriage because it was the first such decision since the U.S. Supreme Court opened the door to invalidating marriage laws by creating a constitutional right to consensual sexual activity of any kind. Many of us felt this would be the first of many rulings by liberal state courts invalidating marriage laws.

The response from Congress was scant and predictable. Almost every member of Congress said he or she personally supported the definition of marriage that had existed since the country was founded. But they expressed about as much commitment to righting the judicial wrong as those who say they are "personally opposed" to abortion.

They also had a convenient excuse for inaction: Congress, they claimed, had already protected marriage by passing the Defense of Marriage Act. This claptrap was designed to appease and to deceive. These marriage "supporters" knew full well that, given the propensity of judges to ignore the Constitution and the will of the people, it would be but a matter of time before DOMA, like the state marriage laws themselves, was deemed unconstitutional.

That happened last week, when a federal district court judge in (again) Boston ruled that the majority of Republicans and Democrats in Congress passed DOMA for the one purpose forbidden by law: "to disadvantage a group of which it disapproves."

The judge disregarded one of the principal justifications Congress gave for the law: supporting responsible procreation and childbearing. Why? Because President Obama's lawyer, Solicitor General Elena Kagan, dismissed that congressional finding in her brief defending the law. Presumably, Obama's Supreme Court nominee disagreed with Congress' rationale, so she felt no obligation to make that argument on behalf of the government.

Back in 2004, I was part of a small group of Republican senators that forced a floor vote on a motion to consider a constitutional amendment defining marriage as being between a man and a woman. We needed 60 votes to proceed; we fell just short of 50. Many senators who voted "yea" privately castigated me for making them "walk the plank" on such a tough issue.

A majority of Americans still supports traditional marriage. It has been on the ballot in 31 states and won every time. However, the inside-the-Beltway power centers - the media, campaign contributors, and politically active special-interest groups - passionately want to, as the 2004 Massachusetts majority opinion put it, "eradicate that stain" on our country.

That's why, when last week's ruling in Boston knocked down the last defense against judicially mandated same-sex "marriage," there was largely silence from the political class.

With the exception of a core group of conservatives, most politicians - including the president - continue to publicly back marriage while eagerly awaiting the day when judges will take this issue out of their hands. In this case, silence, as my former colleague Zell Miller once said, is not golden; it's yellow.

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