If Congress doesn't act quickly, all states may be forced to recognize same-sex marriage.
That's according to Senate Judiciary Committee Chairman Orrin Hatch, R-Utah, and Brigham Young University law professor Lynn Wardle - Hatch's star witness at a hearing Thursday.But gay groups said the bill Hatch and Wardle want makes homosexuals a target for discrimination, and essentially attempts to solve a problem that they say doesn't exist.
Hatch is pushing a bill sponsored by Sen. Don Nickles, R-Okla., to allow states not to recognize same-sex marriages allowed by other states, and to define marriage for federal law and programs as the union between one man and one woman.
Hatch said a real problem exists because the Hawaii Supreme Court on a 3-2 vote recently held that Hawaii's ban on same-sex marriage may violate its state constitution, and remanded it to a trial court for more proceedings.
Hatch said if Hawaii recognizes same-sex marriage later this year, gay couples from other states could fly to Hawaii to be married - and the "full faith and credit" clause of the U.S. Constitution could force their home states to recognize the marriage as valid.
Wardle agreed and said advocates of same-sex marriage have long advocated in law-journal articles such a back-door approach of gaining approval for it.
"This is not a speculative or trifling concern. It is a very serious matter to propose to use federal authority (the full faith and credit clause) to force unwilling states to recognize same-sex marriages. Yet that is precisely the tactic being pursued," he said in a prepared statement.
He added, "This tactic threatens the very federal structure and unity of our nation." He said Nickle's bill is neutral on whether same-sex marriages should be allowed, and simply allows each state to decide itself.
However, University of Chicago law professor Cass R. Sunstein said the bill is unneeded and an intrusion because case history shows the Supreme Court has never forced states to accept marriages that they feel to be unreasonable - including those that are polygamous, incestuous or among minors.
Agreeing was Mitzi Henderson, president of Parents, Families and Friends of Lesbians and Gays, who said the bill "is an attempt at a solution to a problem that doesn't exist."
She added, "The bill is mean-spirited: It targets a group of people for discrimination. . . . We cannot now, at this juncture, give up on our commitment to tolerance."
However, Wardle said, "There is an important difference between `tolerance' and `preference' " - and recognizing homosexual relationships as marriages would give that lifestyle preference in laws ranging from adoption to custody, state taxes, probate and education.
"Thus the gay/lesbian demand that homosexual couples be allowed to marry is a demand for special preferred status," Wardle said.
Henderson, however, argued that not allowing gay marriage actually endangered her son's life once - because a hospital would not allow his gay partner to give permission for needed emergency surgery because he legally was not a family member.
Meanwhile, Wardle praised Nickle's bill for making clear that for federal law and programs - such as Social Security, welfare, income tax and bankruptcy issues - only heterosexual marriages would be recognized.
He said the time to make that clear is now before action by lawsuits.
Hatch said he feels the bill "is a necessary, valuable and constitutional piece of legislation."
He said the Clinton administration agreed, and put into the record a letter from Assistant U.S. Attorney Andrew Fois saying it believes the bill is constitutional. President Clinton has also opposed same-sex marriage.