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Writing Discrimination into the U.S. Constitution?
Press Release
February 24, 2004

WASHINGTON - Responding to President Bush's official endorsement this morning of a constitutional amendment to deny marriage rights to same-sex and unmarried couples, the American Civil Liberties Union said that the amendment supported by the White House is much broader than advertised and would not only ban civil unions but could completely deny a broad range of government benefits to unmarried couples, be they gay or straight.

The ACLU also noted that the measure as written is fundamentally at odds with basic principles of federalism and state authority, which has made the amendment a wedge issue even among conservatives.

"President Bush's endorsement of this mean-spirited amendment shows that he is neither compassionate nor concerned with the rights of all Americans," said Anthony D. Romero, Executive Director of the ACLU. "Gays and lesbians are our neighbors, our co-workers, our friends. They serve as firefighters, police, doctors and professional athletes. They laugh at the same jokes and worry about car payments and credit card debt. Amending the constitution to deny them the same rights we all take for granted just isn't very American."

The debate over denying marriage rights to gay and lesbian couples has been heating up in response to a Supreme Court decision prohibiting state anti-sodomy laws and a Massachusetts Supreme Court decision that same-sex couples cannot be denied the same rights enjoyed by straight married couples. The city of San Francisco recently began granting marriage licenses to gay and lesbian couples and has challenged California's statutes that prohibit gays and lesbians from marrying.

These developments have prompted social conservatives to introduce a constitutional amendment that would deny all "legal incidents" of marriage - that is the vast bundle of civic benefits conferred by marriage -- to any unmarried couple, both same-sex and straight, and would preclude states from even recognizing so-called "civil unions," which can confer some state level benefits.

"We should not write discrimination into the Constitution to score political points," said Christopher E. Anders, an ACLU Legislative Counsel. "This so-called modest measure is anything but that -- if adopted, it could lead to a dismantling of the protections that state and local governments have given to gay and lesbian Americans. It is the nuclear bomb of anti-gay attacks, forever wiping out most of the protections for same-sex couples."

The proposed amendment, the ACLU said, could undermine state domestic partnership, adoption, foster care and kinship care laws. It could deny all unmarried couples -- regardless of sex -- all legal protections for their relationships by overriding any federal or state constitutional protections and federal, state and local laws. In many states, unmarried persons - including unmarried relatives, heterosexual couples, and even unrelated clergy members -- have the same rights as married persons to jointly adopt or provide foster care or kinship care.

The proposed amendment also lacks across the board support from conservatives. Former member of Congress Bob Barr (R-GA), a strong opponent of same-sex marriage, "does not support a federal constitutional amendment defining marriage. He prefers instead to leave the decision to the citizens of each state." Barr was the author of the 1996 Defense of Marriage Act, which allows individual states to reject same-sex marriages performed by other states and has never been challenged successfully in court.

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