WASHINGTON — Experts and lawmakers differed sharply in testimony Tuesday before the Senate Judiciary Committee over whether the institution of marriage is under judicial assault and can only be preserved through a constitutional amendment banning gay marriage.
In an opening statement, presiding Sen. John Cornyn (R-Texas), chairman of the subcommittee on constitutional law, decried what he said was a "judicial onslaught'' against traditional marriage.
Barney Frank (D-Mass.), who is openly gay, made the issue personal in emotional, unscripted testimony to his Senate colleagues.
"I have to ask, senators, who are we hurting? How is the fact that I or someone else wants to express love to another human being
how does that hurt you? Why is this considered an infringement?" Frank said.
Although congressional approval of a constitutional ban on gay marriage is considered unlikely this year, the hearings marked a new round in the intensifying struggle over the issue during the 2004 election campaign.
Cornyn dismissed as "myth" the notion that "my marriage doesn't affect your marriage" — a formulation he attributed to proponents of gay marriage to justify their position.
That, Cornyn said, "does not reflect reality. Redefining marriage in a way that reduces it to a financial and legal relationship will only accelerate the deterioration of family life."
The sponsors of the proposed amendment, Sen. Wayne Allard (R-Colo.) and Rep. Marilyn N. Musgrave (R-Colo.), testified that it was needed to prevent gay activists and judges from overturning state and federal laws defining marriage as a union between a man and a woman.
The charge that incorporating a ban on gay marriage into the Constitution would enshrine discrimination in the fundamental document of American democracy cheapens the debate, Musgrave said.
Committee Democrats and some legal experts, however, argued that regulation of marriage is best left to the states.
"The issue of marriage," said Sen. Dianne Feinstein (D-Calif.), "is the purview of the states, not of the federal government." Throughout U.S. history, she said, "the states have proved entirely capable of dealing with this issue."
In testimony before the committee, University of Chicago law professor Cass R. Sunstein said "those who endorse the amendment fear that if one state recognizes same-sex marriages, others will be compelled to do so as well." That fear, Sunstein said, "is unrealistic; the federal system permits states to refuse to recognize marriages that violate their own policies."
Democrats also took issue with Allard and Musgrave for rewording the proposed amendment on the eve of Tuesday's hearing. The authors defended their changes as technical.
The new text reads: "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."
The sponsors deleted language that would have required that the amendment be ratified by three-quarters of the states within seven years.
In the second sentence, they also deleted the phrase "nor state or federal law," which had followed the words, "Neither this Constitution, nor the constitution of any state."
The sponsors said the changes were meant to ensure that state legislatures could enact civil-union laws and grant benefits to domestic partners if they chose to do so.
Although Allard insisted that the amendment, as worded, would not affect "adversely any state's effort to deal with the issue of civil unions," he indicated that he was open to changes.
Whatever text is ultimately adopted by the committee, both Republicans and Democrats say the chances of Congress passing any marriage amendment in this election year are slim.
A vote of two-thirds of each chamber of Congress is required to pass a constitutional amendment, which must then be ratified by the legislatures of three-fourths of the states before it can become law. Neither the House nor the Senate has set a date for the proposed amendment to come to a vote.
Senate Minority Leader Tom Daschle (D-S.D.) dismissed the whole exercise Tuesday as politically motivated.
"We're not even close to having votes sufficient to pass a constitutional amendment," Daschle told reporters.
The measure has been criticized not only by many Democrats, but by some Republicans, who argued that marriage laws are best left to the states, or are reluctant to amend the Constitution on a social issue.
But President Bush has publicly endorsed a constitutional amendment, although he has not specifically endorsed the Musgrave and Allard wording. Republicans have said the issue — which is important to many social conservatives — will play a prominent role in the presidential election campaign.
Sen. John F. Kerry of Massachusetts, the presumed Democratic presidential nominee, has said he is opposed to a constitutional amendment banning gay marriage.
Supporters of a constitutional amendment say that the Massachusetts Supreme Judicial Court forced them to act when it ruled last year that the state Legislature must recognize gay marriages.
"The only way to save laws deemed unconstitutional by activist judges is a constitutional amendment," Cornyn said.
Times staff writer Richard Simon contributed to this report.