Santorum backs nullifying existing gay marriages
Saturday, March 3, 2012
There are 18,000 married gay and lesbian couples in California and at least 131,000 nationwide according to the 2010 census, conducted before New York state legalized same-sex marriage in July.
Rick Santorum says he'll try to unmarry all of them if he's elected president.
Once the U.S. Constitution is amended to prohibit same-gender marriages, "their marriage would be invalid," the former Pennsylvania senator said Dec. 30 in an NBC News interview.
"We can't have 50 different marriage laws in this country," he said. "You have to have one marriage law."
The comments didn't attract nearly as much attention as Santorum's recent invocation of his Catholic faith to denounce government support for birth control, prenatal testing and resource conservation - which, in the last case, he attributed to President Obama's "phony theology."
But his declared intention to nullify past as well as future same-sex marriages has reinforced his position to the right of the other Republican contenders, even though each of them has also voiced fervent support for traditional unions.
Mitt Romney, who was governor of Massachusetts when the state's high court became the first in the nation to declare a right to same-sex marriage in 2003, backs a constitutional amendment to outlaw such marriages in the future, but says he'd leave currently wedded couples alone. Newt Gingrich also wants an amendment but hasn't said whether it would be retroactive.
Ron Paul opposes same-sex marriage but wants the federal government to stay out of it - no federal benefits for gay and lesbian couples, no federal court authority to overturn state laws like California's Proposition 8 and no constitutional amendments overriding a state's prerogative to decide which of its residents can marry.
Santorum's proposal for constitutionally mandated divorces would affect couples like Stuart Gaffney and John Lewis of San Francisco, longtime partners who wed in June 2008, five months before Prop. 8 banned same-sex marriage. The couple later helped to found an organization called Marriage Equality USA.
"It's with profound sadness that I contemplate somebody running for the highest office in the land on a platform of taking away anyone's marriage," Gaffney said Friday.
Fred Karger, a longtime Republican political consultant and gay-rights activist who is also running for president and will be on the Republican primary ballot in California, said Santorum's comments on marriage were "the most destructive of any Republican candidate by far, bigoted, shameful."
Santorum's stance was endorsed by the Family Research Council, which was involved in an unsuccessful attempt to win passage of a constitutional amendment during George W. Bush's presidency.
"Same-sex marriage is an oxymoron" because marriage can only be a male-female relationship, said the council's Peter Sprigg. If the Constitution is amended to include that definition, he said, states that had recognized same-sex marriages would have to convert those relationships to civil unions.
Santorum's position is noteworthy because laws revoking individual rights are usually drafted, or interpreted by the courts, to apply only to future conduct.
The issue arose in California when the state Supreme Court upheld Prop. 8, which amended the state Constitution to prohibit same-sex marriage. The measure declared that only marriage between a man and a woman would be ''valid or recognized" in California. Its sponsors argued that the language barred the state from "recognizing" 18,000 marriages of same-sex couples who had wed in the months before Prop. 8 passed in November 2008.
But the court said Prop. 8 did not clearly inform voters that it would invalidate existing marriages. Therefore, the justices said, the 18,000 couples were entitled to rely on the rights they had gained in the court's May 2008 ruling, which briefly legalized same-sex marriage in the state.
Spelling it out
That doesn't rule out the possibility of a U.S. constitutional amendment like the one Santorum favors, which would nullify existing same-sex marriages.
"You'd have to word it so it was perfectly clear," said Jesse Choper, a UC Berkeley law professor who submitted arguments to the state's high court against the retroactive application of Prop. 8. The amendment would have to declare that "marriages that were once valid are no longer valid," he said.
Santorum, who once practiced law, hasn't said how he would draft a constitutional amendment - or how he could get one passed even while opinion polls suggest increasing public acceptance of same-sex marriage.
"Just because public opinion says something doesn't mean it's right," he said in the NBC interview. "I'm sure there were times in areas of this country when people said blacks were less than human."
A constitutional amendment requires approval by two-thirds of each house of Congress and three-fourths of the states. Even when Republicans controlled both houses in 2004, the Bush-endorsed marriage amendment failed to pass either chamber, with a handful of states'-rights Republicans joining Democratic opponents.
But Sprigg, of the Family Research Council, said the political climate could change - and the prospects of a constitutional amendment increase - if the courts spoke first.
"If you were to have some sort of sweeping decision ... which would essentially impose same-sex marriage on every state in the country," he said, "I think that would perhaps create a huge backlash."
Bob Egelko is a San Francisco Chronicle staff writer. firstname.lastname@example.org.