By Joan Biskupic
Washington Post Staff Writer
Tuesday, September 3, 1996; Page A01

The debate in Congress over same-sex marriages, which is set to resume this week, is remarkable in many ways, foremost that it is taking place at all.

Just 15 years ago, virtually no legal recognition existed for any kind of homosexual relationship. "It was 1981 when we had the first proposal in San Francisco to recognize gay relationships," said Matt Coles, director of the lesbian and gay rights projects at the American Civil Liberties Union. "I was actually in the room when the term `domestic partnership' was invented. People thought lesbians and gay men lived alone."

Now the possibility of same-sex marriages, with all its ramifications, is being aired in a national forum, spurred by a Hawaii court case. Republicans in Congress are fearful that if Hawaii allows men to marry men and women to marry women, then other states will be forced to accept these unions.

The Senate is scheduled to take up the "Defense of Marriage Act" Thursday and Senate Majority Leader Trent Lott (R-Miss.) has said its passage is a GOP priority before the Senate recesses this fall. The legislation makes clear that no state would have to recognize a same-sex marriage from another state and defines marriage in federal law as a "union between one man and one woman."

But the legislation raises constitutional questions and, like the abortion issue, invokes concerns about individual privacy and public morality. Sponsors say they want to preserve heterosexual values and traditional families. Opponents counter that the measure is mean-spirited and discriminatory. The divisiveness is exacerbated by the politics of the upcoming November elections.

Hawaii has come the closest of any state to allowing same-sex marriages. The Hawaii Supreme Court ruled in 1993 that discrimination against lesbians and gay men who want to marry would be permissible only if supported by a "compelling" state interest. That is a very difficult standard and one that will be tested in a trial scheduled to begin this month.

"Whatever one's views are concerning the morality of same-sex marriages," University of Oregon law professor Maurice J. Holland said, "no one could characterize the legal change anticipated [in] Hawaii as other than revolutionary. That change would drastically alter the nature and character, indeed the very definition of, the most important institution of human civilization, the family."

The key sponsors of the "Defense of Marriage Act," Sen. Don Nickles (R-Okla.) and Rep. Robert L. Barr Jr. (R-Ga.), say heterosexual marriages are under threat and Congress should act quickly. But some Democratic opponents say the legislation is politically motivated and designed to force Democrats into difficult votes before the election.

The legislation was approved overwhelmingly in the House, 342 to 67, in August. It appears headed for passage in the Senate, too, although there the bill faces a controversial amendment by Sen. Edward M. Kennedy (D-Mass.) to prohibit job discrimination based on sexual orientation.

"No one in the world believes that this is not political," said Rep. Barney Frank (D-Mass.), one of the four openly gay members of Congress. "There is a [Hawaii] trial that has not even started. Why, when the decision came in 1993 and the process will not end until 1997 or 1998, are we doing this three months before the election? Oh, it is not political, sure."

Frank and other critics note that states already may disregard marriage licenses from other states based on public policy grounds. While proponents of the "Defense of Marriage Act" acknowledge this, they say the legislation is necessary to make absolutely clear that states need not recognize a marriage from Hawaii and to preempt any move by a liberal judge to rule otherwise, particularly since the Constitution's "full faith and credit" clause usually requires states to recognize official acts of other states.

"What is at stake in this controversy?" asked Rep. Charles T. Canady (R-Fla.) during the House debate. "Nothing less than our collective moral understanding – as expressed in the law – of the essential nature of the family, the fundamental building block of society. This is far from a trivial political issue."

Rep. Lynn C. Woolsey (D-Calif.) countered that the legislation "flies in the face of states' rights, and it plays into the hands of the radical right, those who are trying to divide our country by scapegoating gays and lesbians."

Then Woolsey made a personal appeal: "Let us look at what it will mean to my family," she said, noting that while one of her sons recently married a woman and automatically will have the legal benefits of marriage, another son, who is gay, could be denied the "options and protections" that marriage traditionally has meant.

Such personal commentary from members of Congress could not have been imagined a decade ago, said Georgetown University law professor Chai Feldblum. "It is pretty amazing that these stories are being told in the halls of Congress and being listened to by people, some with a sympathetic ear," she said.

"We are absolutely on the road to achieving full equality, perhaps even in my lifetime," said Feldblum, 37, a gay rights advocate.

But Republicans have demonstrated that they do not want to let the courts decide whether gays receive the same government benefits and protections as heterosexuals do.

Generally, a valid marriage license from one state is valid in another. However, under a doctrine known as "conflict of laws," a state may reject the marriage license if it violates the state's strong public policy. In the past, such grounds have involved marriages of minors and certain familial unions, such as between first cousins.

Lawyers on both sides agree that states with a prohibition against same-sex marriages arguably would not have to give legal effect to same-sex marriages celebrated in Hawaii or elsewhere. As of the end of August, 15 states had enacted new laws designed to keep marriage heterosexual, according to the Lambda Legal Defense and Education Fund. Similar proposals were defeated or withdrawn in 19 other states, the group said.

The pending legislation, however, addresses the Constitution's "full faith and credit" clause requiring states to give binding legal effect to the enforcement of judgments. This clause typically does not apply to marriages because they are generally viewed as "civil contracts" created by a state, not a legal judgment.

But bill sponsors have invoked it because some gay activists, including Coles of the ACLU, and the Lambda Legal Defense and Education Fund, contend that same-sex marriages might be protected by the "full faith and credit" clause. Sponsors want to head off the possibility that such an argument would prevail.

"The legal ramifications of what the state court of Hawaii is about to do cannot be ignored," said Rep. Steve Largent (R-Okla.). "If the state court in Hawaii legalizes same-sex marriage, homosexual couples from other states around the country will fly to Hawaii and marry. These same couples will then go back to their respective states and argue that the `full faith and credit' clause of the U.S. Constitution requires their home state to recognize their union as a marriage."

Sponsors say Congress may carve out an exception to the principle of "full faith and credit" that would allow a state to disregard a marriage that is legal in another state.

Harvard University law professor Laurence H. Tribe asserted in a letter to Kennedy that Congress possesses no power under the Constitution to legislate a categorical exemption from the "full faith and credit" clause. Another law professor, Michael W. McConnell of the University of Chicago, has countered in a letter to Senate Judiciary Committee Chairman Orrin G. Hatch (R-Utah) that Tribe's argument is "baseless."

McConnell argues that some courts might deem same-sex marriages "judgments," forcing other states to accept them unless Congress intervened.

Because the legislation also would define marriage in federal law as the "legal union between one man and one woman," even if a state were to recognize gay marriages, the partners would not be eligible for survivor benefits under federal veterans, Medicare or Social Security programs.

Staff researcher Barbara J. Saffir contributed to this report.