President rips SJC on gay marriage

WASHINGTON -- President Bush invoked the Massachusetts Supreme Judicial Court yesterday in calling on Congress to approve a constitutional amendment banning gay marriage, telling a group of religious leaders that the ``most fundamental institution of civilization" is in jeopardy because of ``activist judges."

In returning to the divisive issue of gay marriage, the president is seeking to energize social conservatives in advance of the midterm congressional elections. He maintained that without a constitutional amendment, states across the country might have to recognize marriage ``as redefined by judges in, say, Massachusetts."

``Our policies should aim to strengthen families, not undermine them," the president said in a speech at the Eisenhower Executive Office Building, as the Senate began the first of three days of debate on the measure. ``And changing the definition of marriage would undermine the family structure."

Despite Bush's plea, both sides acknowledge that the amendment will fall well short of the 67 votes it needs in the Senate for approval. The amendment's supporters concede that they lack the necessary votes in the House of Representatives as well.

But GOP leaders say it is important to vote on the amendment anyway to send a signal that Republicans are fighting to preserve marriage as it has traditionally been defined. Focusing on gay marriage served Republicans well in 2004, when 11 state ballot initiatives outlawing gay marriage helped boost conservative turnout in states including Ohio -- where Bush's reelection victory was sealed.

``We ought to have a vote on this amendment every year, whether it's an election year or not," said Senator Wayne Allard , a Colorado Republican who is the chief sponsor of the gay marriage ban. ``People support traditional marriage."

The Senate also will take up other conservative issues in the coming weeks, including a constitutional ban on flag burning and a permanent abolition of the estate tax. But Democrats and even some Republicans say party leaders are making a mistake if they assume that such red-meat issues will work in galvanizing the conservative base this year.

Disapproval of Bush and the Republican-led Congress are near historic-high points, and even many conservatives are upset over the federal government's deficit spending and the president's position on immigration.

By focusing on banning gay marriage instead of soaring gas prices and the war in Iraq, Republicans are revealing themselves to be out of touch, said Joe Solmonese , president of the Human Rights Campaign, a leading supporter of gay marriage.

``This year, it's a political tactic that's going to backfire," Solmonese said. ``You have a nation that is demanding answers from its leadership. . . . The American people look at what's going on here and are disgusted."

Senate minority leader Harry Reid, who opposes gay marriage but believes states should be free to make their own decisions on the issue, blasted Bush and Senate majority leader Bill Frist for backing an initiative that is ``without hope of passing" when so many other priorities require more urgent attention.

``The reason for this debate is to divide our society, to pit one against another," said Reid, a Nevada Democrat. ``This is another one of the president's efforts to frighten, to distort, to distract, and to confuse America."

Two years ago, an amendment banning gay marriage drew just 48 votes in the Senate. Supporters believe they will get four additional votes this year, from Republicans who have replaced Democrats in the Senate.

A March survey by the Pew Research Center found that 51 percent of adults nationwide oppose gay marriage. But that's 12 percentage points lower than the disapproval for gay marriage the poll found in February 2004, shortly after the Massachusetts SJC issued its landmark ruling finding a state constitutional right to same-sex marriage.

The first state-sanctioned gay marriages in the nation were performed in Massachusetts in May 2004, and Massachusetts remains the only state in the nation where gay marriage is legal.

But court challenges to state prohibitions against gay marriage are pending in nine other states, and courts in four of those states have found that gay marriages should be allowed. Those cases will be settled by state supreme courts unless the federal constitutional amendment is enacted.

The 1996 Defense of Marriage Act protects states from having to recognize gay marriages that are sanctioned by other states, though critics maintain that the law is unconstitutional. Bush said that if that act is overturned by the courts, ``then marriage recognized in one city or state may have to be recognized as marriages everywhere else" -- and that the court decision in Massachusetts would set the tone for the whole country.

Governor Mitt Romney's office released a letter yesterday that the governor sent to Frist last week saying that Massachusetts' experience with the issue speaks to the need for a constitutional amendment.

``In order to protect the institution of marriage, we must prevent it from being redefined by judges like those here in Massachusetts," wrote Romney, who is preparing for a possible 2008 presidential run. ``Once a society establishes that it is legally indifferent between traditional marriage and same-sex marriage, how can one preserve any practice which favors the union of a man and a woman?"

But the amendment has split Republicans. Arlen Specter, Senate Judiciary Committee chairman, said marriage should not be defined in the Constitution, a position he shares with Vice President Dick Cheney.

``This is a matter that ought to be left to the states, and the states are taking care of it," said Specter, a Pennsylvania Republican.

Tony Fabrizio , a Republican pollster, said the issue of a constitutional amendment banning gay marriage is unlikely to be utilized by Republican candidates in swing districts this fall because it doesn't appeal to the moderate voters who could decide those races. Candidates would much rather be talking about the war on terror and Republican ideas for controlling gas prices, he said.

``I don't get the equation" of emphasizing gay marriage, Fabrizio said. ``You run the risk of looking like you're out of touch."

The proposed amendment states that ``marriage in the United States shall consist only of the union of a man and a woman." It would nullify the 2003 Supreme Judicial Court ruling, and would prevent other state courts and legislatures from legalizing gay marriage.

The amendment would not, however, prevent states from establishing civil unions that carry benefits that are equivalent to marriage, such as those now in place in Vermont. That point has upset some conservatives, who say the amendment should go further by banning gay marriage .