In 2004, when I was in the Senate, another contentious cultural issue returned to the national scene as a result of a judicial decision. The highest court in Massachusetts ruled that the state's definition of marriage was discriminatory, and it further exercised its raw power by requiring the Massachusetts legislature to change state law.
This was not the first time this happened. In 1993, the Hawaii Supreme Court invalidated its state's marriage law and paved the way for same-sex marriage there.
The concern then was that other courts, using the U.S. Constitution's Full Faith and Credit Clause, would force other states and the federal government to recognize these judicially imposed marriages. In a rare moment of bipartisan accord on such cultural issues, Congress and President Bill Clinton responded by enacting the Defense of Marriage Act to protect states from further judicial assault.
The later Massachusetts ruling worried advocates of traditional marriage because it was the first such decision since the U.S. Supreme Court opened the door to invalidating marriage laws by creating a constitutional right to consensual sexual activity of any kind. Many of us felt this would be the first of many rulings by liberal state courts invalidating marriage laws.
The response from Congress was scant and predictable. Almost every member of Congress said he or she personally supported the definition of marriage that had existed since the country was founded. But they expressed about as much commitment to righting the judicial wrong as those who say they are "personally opposed" to abortion.
