John Kerry is lecturing President Bush on the dangers of amending the U.S. Constitution. Has Kerry forgotten his own constitutional meddling as a proponent of the Equal Rights Amendment?
In the 1970s, Kerry marched with radical feminists in New York to promote ERA, according to an article on his campaign website. Appealing to feminists during one of his Senate runs, Kerry said: “The Equal Rights Amendment is the only systematic way to achieve full equality for women under law, including equal opportunity in employment, equal pay for comparable effort, and an end to sex discrimination in insurance, pensions, and annuities. I will work closely with Senator Packwood and the principal Senate co-sponsors of the ERA to enact this constitutional amendment into law at the earliest possible date.”
Wasn’t ERA a wedge issue, a “divisive and controversial Constitutional Amendment,” to borrow the Democratic National Committee’s description of the Federal Marriage Amendment? Kerry’s talk about wedge issues can only derive from his own history with them.
As an advocate for ERA, Kerry must have known that his cohorts were using it to advance, among other things, the cause of same-sex marriage. The ERA proposed: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Opponents of ERA noted that this proposition would establish a justification for same-sex marriage. Harvard Law Professor Paul A. Freund testified to a Senate subcommittee during ERA hearings that homosexual marriage would logically result from ERA: “Indeed, if the law must be as undiscriminating concerning sex as it is toward race, it would follow that laws outlawing wedlock between members of the same sex would be as invalid as laws forbidding miscegenation.”
In banning all sex classifications, ERA would have rendered marital laws unconstitutional. In a 1979 article for Policy Review, Phyllis Schlafly, warning about a federal ERA, pointed out that homosexuals had begun to assert marital rights under state ERAs.
She wrote that “many ERA proponents were quite open in predicting that ERA would require that marriage licenses be issued to persons of the same sex. For example, Rita Hauser, United States representative to the United Nations Human Rights Commission, stated in her address on ERA to the American Bar Association Annual Meeting St. Louis in August 1970: ‘I also believe that the proposed Amendment, if adopted, would void the legal requirement or practice of the states’ limiting marriage, which is a legal right, to partners of different sexes.’ An article in the Yale Law Journal candidly stated the case for this effect of ERA: A statute or administrative policy which permits a man to marry a woman, subject to certain regulatory restrictions, but categorically denies him the right to marry another man clearly entails a classification along sexual lines.… The stringent requirements of the proposed Equal Rights Amendment argue strongly for … granting marriage licenses to homosexual couples who satisfy reasonable and non-discriminatory qualifications.”
Because ERA was laying the groundwork for same-sex marriage, wrote Schlafly, Senator Sam J. Ervin, Jr. “proposed an amendment to the Federal ERA, which stated: ‘Neither the United States nor any state shall make any legal distinction between the rights and responsibilities of male and female persons unless such distinction is based on physiological or functional differences between them.’” Ervin’s proposal “that would have exempted same-sex marriages from the Federal ERA mandate was soundly defeated,” Schlafly wrote.
So if Kerry, as he says today, is opposed to constitutional amendments which touch on marriage, why did he support ERA as it threatened to upend marital laws? Kerry is opposed to Bush’s support for a marriage amendment not because he finds the amendment process dubious or that marriage is a matter for the states but because its goal of protecting marriage is one he does not support.
Kerry’s stated opposition to same-sex marriage is a sham. A few days ago Kerry played dumb when asked about Gavin Newsom’s same-sex marriage certificates. “I haven’t made any judgment about it,” Kerry said. “I haven’t really kept up with exactly what he is doing.” But Kerry’s wife, less politically circumspect, let the cat out of the bag as she visited the Bay Area this week. Calling Bush’s marriage amendment “divisive politics,” she reassured her Bay Area audience, “I think with time, and without a lot of politicization of this, we’ll get there.” Where is “there” if not same-sex marriage?