An important Senate committee says in a new policy paper that if a Constitutional amendment defining marriage as the union of one man and one woman is not passed, state and federal courts may eventually impose same-sex marriage. The paper says that advocates of same-sex marriage plan to challenge state marriage laws producing a patchwork of laws across the country that "will inevitably end up playing out in the courts, as same-sex marriage puts new stresses on the legal system."

"Why a Marriage Amendment is Necessary," published by the Republican Policy Committee comes in anticipation of the impending June 5th debate on the floor of the Senate over a proposed Constitutional amendment defining marriage as consisting "only of the union of a man and a woman." Majority leader Sen. Bill Frist announced that the Senate will vote on the amendment on June 6th. The policy paper details the status of marriage law today and includes a discussion of the overwhelming popularity of traditional marriage laws at the state level and the challenges those law are already facing in the courts.

The paper says, "Failing to act to protect traditional marriage laws by a constitutional amendment will, in the end, likely result in the judicial imposition of same-sex marriage on a nationwide basis." This will come about through a three step process. First, "some state supreme courts undoubtedly will strike down state marriage laws" resulting in "national fragmentation of marriage definitions." Second, the fragmented status will become untenable as cases that come before courts "involving everything from divorce to child custody to health care to probate will be more complicated and require case-by-case analyses in the courts." Such "a patchwork of definitions is not likely to endure" leading to the third step in which the issues becomes federal and the "ultimate arbiter will be the Supreme Court."

The paper says the Supreme Court would have "Have a duty to assist the lower courts in the management of the plethora of thorny legal problems that same-sex marriage will have created in a patchwork system. The Court will be under enormous pressure to craft a national solution." The paper says that regardless of whether or not an amendment is passed, there will eventually be a federal definition of marriage with the only question being whether it come from the people or the courts.

Right now 45 states have laws defining marriage according to traditional norms. Of those 45, 19 have state constitutional amendments and at least seven states are considering an amendment in 2006. The paper also notes that in the 19 states that have considered a state constitutional amendment, not only has the amendment passed but it has done so with an average of 71.5 percent of the vote. As of March nine states face court challenges to their laws defining traditional marriage and in four of those states lower courts "have already struck down the marriage laws and found a right to same-sex marriage in state constitutional provisions dealing with equal protection and due process."

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