Why We Need a Constitutional Amendment Protecting Marriage

The Washington Times reported on Saturday that a 1913 Massachusetts state law will be under attack this week. The law states that nonresident couples who are prohibited from marrying in their home states are also prohibited from marrying in Massachusetts. A lawsuit challenging the 1913 law will be heard Thursday in the Massachusetts Supreme Judicial Court, the same court which, in November of 2003, found a constitutional right to same-sex marriage. If the court overturns the marriage-residency law, it could open the way for same-sex couples from across the nation to get married in Massachusetts.

Same-sex couples married in Massachusetts would then undoubtedly sue to have their marriages recognized in their home states under section one of article four of the United States Constitution, known as the Full Faith and Credit Clause. The Full Faith and Credit Clause states, "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." This would mean that same-sex couples from anywhere in the United States could travel to Massachusetts, get married, then travel back to their home states where they would have to be recognized as legally married couples.

The Defense of Marriage Act (DOMA), passed by Congress in 1996, attempted to address this potential problem by declaring that no state must recognize "a relationship between persons of the same sex that is treated as a marriage under the laws of such other State." It takes very little imagination, however, to envision this provision of DOMA, if not DOMA itself, being ruled unconstitutional in our court system.

This leaves a Constitutional amendment defining marriage as a union of a man and a woman as the only real protection of the institution of marriage.