GOP divided on marriage amendment

WASHINGTON -- Republican leaders have run into unexpected resistance within their own party to the proposed constitutional amendment to ban gay marriage and are regrouping to avoid an embarrassing defeat on a measure that is a top priority for social conservatives and an election issue for President Bush.

With two-thirds majorities required to pass an amendment in both the House and the Senate, Republicans concede they may have overestimated the momentum in Congress and are considering altering the language or delaying votes to build more support.

In the Senate, at least one-third of the 51 Republicans have withheld support from the proposed amendment. Some assert that Congress should wait until federal courts or state legislatures grapple with gay marriages. Others believe the measure discriminates against gays and lesbians. Many say amending the Constitution should be a last resort.

"There are a lot of people like me who think we don't need to amend the Constitution," said Senator John McCain, an Arizona Republican. "Certainly, there is not unanimity on this issue, to say the least."

Even if the GOP leadership united Senate Republicans behind a marriage amendment, they would still need the votes of 16 Democrats, and so far only Senator Zell Miller of Georgia has endorsed the measure. The Senate's one independent, James M. Jeffords of Vermont, said he opposes the proposed amendment.

Senator Orrin Hatch, chairman of the Senate Judiciary Committee, said he is a strong advocate of traditional marriage and supports the proposed amendment, but conceded its passage "is going to be uphill."

"I'm certainly not going to stop thinking or trying to come up with the very best approach we can to bring people together so we can pass something," said Hatch, who has drafted an alternative marriage amendment giving each state the right to define civil marriage as it sees fit and protection against recognizing unions sanctioned in other jurisdictions.

The pending Federal Marriage Amendment, introduced in the House and the Senate, states: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any state, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman."

Hatch said that to get 67 votes and avoid a filibuster from Democrats, the marriage amendment will have to allow states to provide civil unions for gay and lesbian couples.

"It's clear there has to be an accommodation for monogamous gay couples who sustain their relationships over the years," said Hatch, a conservative Republican from Utah. "Everybody around here knows I don't believe in discrimination. I don't want to hurt gays. Some of the most talented people in our society today are gays."

Social-conservative activists say they are furious at Hatch. They say he is trying to water down the proposed amendment and is leading a rebellion against it among Senate Republicans. His proposal, they say, would create a patchwork of state laws potentially permitting not only civil unions but also same-sex marriages.

"The problem in the Senate, and it's a serious problem, can be summed up in two words: `Orrin Hatch,' " said Paul Weyrich, president of the Free Congress Foundation and a longtime conservative activist. "He is actively discouraging Republicans from supporting the Federal Marriage Amendment, telling them, `it's not going to pass, so why get yourself out on a limb?' "

Weyrich said Christian conservative groups are prepared to lobby members of Congress intensely for a constitutional amendment but will not "turn on the juice" until they are satisfied that the proposal would prevent judges, such as those in Massachusetts, from legalizing gay marriage or requiring recognition of same-sex marriages performed in other states.

Some Republicans could resist the pressure. They argue that amending the Constitution is premature, because the Legislature in Massachusetts and the courts in California are dealing with the gay-marriage issue, and the federal Defense of Marriage Act, which says one state does not have to recognize same-sex marriages from another state, has not been challenged.

Senator Arlen Specter, a Pennsylvania Republican and senior member of the Judiciary Committee, told reporters Friday he was not ready to endorse the marriage amendment. "If the states cannot adequately protect the institution of marriage between a man and a woman, I'm prepared to consider a constitutional amendment," Specter said. "But if you talk about a US constitutional amendment, you've got to get ratification from 38 states. And I think that Massachusetts may well solve the problem reasonably expeditiously."

The Massachusetts Legislature is expected to resume debate tomorrow on a proposed state constitutional amendment to ban gay marriage and establish civil unions. If approved, the measure would go to the voters in 2006.

"I don't at this point see the need for a constitutional amendment as long as the Defense of Marriage Act remains on the books, and that clearly protects the traditional right of states to define marriage as between a man and a woman," said Senator Susan M. Collins, a Maine Republican.

No Republican senator from New England has endorsed the proposed amendment, which was introduced in the Senate after the Supreme Judicial Court ruled in November that gay marriage was legal in Massachusetts. At least a dozen other Republican senators say they aren't ready to join the president, who last month called for adopting a constitutional amendment banning same-sex marriages.

Senator Lincoln D. Chafee, Republican of Rhode Island, said he opposes the proposed amendment but expected the Senate to vote on it before the presidential election. "They may bring it up just for political posturing," Chafee said. "Unfortunately, sometimes we serve that purpose."

Senator John Cornyn, a Texas Republican who is shepherding the proposed amendment in the Senate, said there is no timetable for a vote, though he believes gay marriages, which are supposed to begin in Massachusetts on May 17, could galvanize public opinion and get Congress to act.

"People in the Senate are still trying to sort out fact from fiction and whether we need a national response. My conviction is that we do," Cornyn said.

Cornyn, a member of the Senate Judiciary Committee, has chaired three hearings on protecting traditional marriage. The House Judiciary Subcommittee on the Constitution is expected to hold the first of five hearings on the issue Tuesday. The first witness is to be former Representative Bob Barr of Georgia, a Republican who drafted the federal Defense of Marriage Act and adamantly opposes amending the Constitution.

"I think it is rather odd that Republicans who profess to be good federalists are rushing to judgment on a constitutional amendment, even before the courts have had a chance to rule on it," Barr said. "This is a very divisive issue; if its proponents thought this would be a slam-dunk; I don't think this will be the case."

In the House, majority leader Tom DeLay of Texas has said he is reluctant to amend the Constitution and it will be difficult to get 290 votes to pass the measure in the House. Stuart Roy, his spokesman, said DeLay is working on the Federal Marriage Amendment's language with its sponsor, Colorado Republican Marilyn Musgrave.

Patrick Guerriero, executive director of the Log Cabin Republicans, a gay-rights group, said some Republicans are pushing back from the issue, because it makes them uncomfortable. "This is a civil rights issue that is moving faster than anyone imagined, and most elected officials are afraid to be on the wrong side of history," he said.

Mary Leonard can be reached at mleonard@globe.com.