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?
