GOP Splits on Amendment

House subcommittee holds first hearing; Barr and Nadler unlikely allies

On March 30, federal lawmakers held another hearing on the proposal to amend the Constitution to outlaw marriage for gays and lesbians, this time in the House of Representatives where members of a judiciary subcommittee called witnesses to testify about the Defense of Marriage Act. Although Rep. Marilyn Musgrave, a Colorado Republican, initially introduced an amendment proposal to define marriage as solely between a man and a woman, the matter has largely been debated in the Senate, with that body’s judiciary committee, led by a Texas Republican, John Cornyn, conducting hearings where thus far some members of the House have spoken out on the amendment.

Apparently, the lack of initiative in the House to undertake the political spadework necessary for an amendment’s passage is due to the lukewarm support the measure has from Rep. F. James Sensennbrenner, Jr., a Wisconsin Republican who is chairman of the judiciary committee and has served in the House since 1979. An attorney, Sensenbrenner is the recipient of numerous honorary awards from legal organizations, including this year’s recognition from the Conservative Political Action Conference. Before being elected to Congress, Sensennbrenner was a Wisconsin state legislator beginning in 1969.

The congressman’s legal background may or not may not lend to his reluctance to amend the Constitution. However, his handling of the measure in what is otherwise a rigidly controlled body that often marches in step with the Oval Office is notable.

For example, Sensennbrenner has scheduled five hearings to be held on the amendment, an unusually high number of meetings for any legislation. Considering the waning number of weeks left in this congressional session, including recesses and vacations, the subcommittee will either need to forgo a thorough consideration of the amendment or expedite the hearing schedule.

“Sensennbrenner has ironclad rule on the judiciary committee,” said Rep. Jerrold Nadler, a Manhattan Democrat who opposes the federal marriage amendment and is a judiciary committee member. “That he scheduled five hearings when other constitutional amendment proposals have gotten one hearing, says something.” For Nadler the hearing schedule, coupled with his characterization that “the constitutional amendment appears to my colleagues to be premature,” indicates a perhaps not so subtle attempt on the part of Republicans to forestall immediate action on the amendment.

Nevertheless, Rep. Steve Chabot, an Ohio Republican, who is chairman of the judiciary subcommittee responsible for the amendment, focused Tuesday’s hearing on the Defense of Marriage Act, a 1996 law signed by Pres. Bill Clinton that defines marriage as between a man and a woman and allows states to refuse recognition of gay marriages performed elsewhere. Many gay observers view the law’s passage as an attempt for the incumbent president to shore up his support with centrist voters as he headed into a re-election campaign.

Clinton’s specter hung about the hearing room in the Rayburn Building on Tuesday morning when Chabot gaveled the session to order. In Clinton’s 1999 impeachment proceedings in the Senate, Chabot served as a House manager, or prosecutor, a constitutionally mandated position that elevated the then fledging legislator from relative obscurity into national prominence. Like many of his committee colleagues, including Nadler, Chabot is a law school graduate who practiced law in Cincinnati before going into politics.

As vociferously as Chabot argued for Clinton’s removal from office, Nadler argued as forcefully that Clinton’s sexual peccadillo did not warrant removal. Now the ranking Democrat on the judiciary subcommittee for constitutional amendments, Nadler, who represents one of the congressional districts attacked by terrorists on September 11, 2001, has been a staunch opponent of the Musgrave proposal known as the Federal Marriage Amendment.

Nadler rebutted the criticism leveled by conservative opponents of “activist judges,” or jurists who rule in favor of same-sex marriage. Nadler invoked the words of former Supreme Court Justice Robert Jackson when he wrote about the meaning of the Bill of Rights in a decision. “Today, those fundamentally American words are nearly forgotten. Constitutional rulings of the courts are evaluated by looking to polling numbers. People no longer agree with the courts, they attack the legitimacy of our system of government. That is dangerous.”

Most starkly of all on Tuesday, the man who was perhaps Clinton’s fiercest political opponent, former Rep. Bob Barr of Georgia, who pushed strenuously for his impeachment and initiated a series of other ethical inquiries while Clinton was in office, testified at the hearing that he opposed amending the Constitution to outlaw gay marriage.

“Changing the Constitution is just unnecessary—even after the Massachusetts decision, the San Francisco circus, and the Oregon licenses,” Barr said, referring to the various initiatives enacted nationwide to marry gay and lesbian partners. Since his retirement from Congress, Barr, an attorney, has worked on behalf of various organizations whose libertarian policies he supports, including the American Civil Liberties Union.

Both Sensennbrenner and Chabot have denounced the decision last year by the Supreme Judicial Court of Massachusetts in which four justices said that the state constitution allowed for gay marriage.

However, neither representative has voiced support for passing a constitutional amendment. “If it’s necessary—in order not to jeopardize traditional marriage—that a constitutional amendment should be passed, I would support that,” Chabot told a reporter for The Washington Times. “Some think an amendment is the only way. I haven’t reached that conclusion yet.”

Sensennbrenner was quoted in the same article as saying that he doesn’t have “an opinion on anything at this point,” when asked about his position.

Sensennbrenner’s lack of enthusiasm for the amendment may account for why the Senate has taken a more forward role in gaining passage of the measure, particularly after Pres. Bush endorsed the amendment in his State of the Union Address. Cornyn, a former Texas attorney general and supreme court justice, has conducted three hearings thus far, two of which, like Tuesday’s House proceeding, focused on specific legal issues, like the definition of marriage, to underscore the urgency for an amendment.

Democrats on the Senate judiciary committee have denounced the process as an election year ploy and their House counterparts reiterated those complaints on Tuesday. Chabot countered that “rogue judges” and local officials acting in disregard of states’ marriage laws, not electoral politics, were responsible for the amendment’s introduction.

In his opening statement Nadler said, “I find it interesting that how many people who, just a few short years ago supported the Defense of Marriage Act, are now urging Congress to amend the Constitution. Is this, I wonder, a tacit admission on their part that they never believed DOMA was constitutional?”

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