News Analysis: Marriage Gets Significant Play As GOP Candidates Debate in New Hampshire

Posted by Chris Geidner
January 7, 2012 10:00 PM |

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[Image: Screen capture of ABC/Yahoo! GOP presidential debate.]

Tonight, the remaining Republican would-be presidential candidates met for one of two debates before the Jan. 10 primary election in New Hampshire -- but a short constitutional law primer is necessary to understand what was really going on when the candidates were asked about contraception, marriage and adoption.

When asked by George Stephanopoulos about whether he believes a state should be able to ban contraception, former Massachusetts Gov. Mitt Romney responded: "I can't imagine a state banning contraception" and added that, if he were governor when a state tried to do so, "I would totally and completely oppose it."

That wasn't enough for Stephanopoulos, who asked if Romney believed states had the right to do so. Pushed, Romney said that there is a process -- constitutional amendment -- for disagreement with Supreme Court decisions.

NHPrimaryThumb.jpgRomney then volunteered that stopping same-sex marriage is a situation where "we should have a federal amendment."

Pushed again for an answer to the question by Stephanopoulos, who mentioned that the Supreme Court had decided the issue in Griswold v. Connecticut, Romney finally said, "I don't believe they decided that correctly." He added quickly that he also believes that Roe v. Wade, a case that built upon Griswold, was incorrectly decided.

The question led to a more-than-10-minute discussion, with several follow-up questions about LGBT issues, from marriage to adoption.

Texas Rep. Ron Paul discussed the Fourth Amendment and the PATRIOT Act, which former Pennsylvania Sen. Rick Santorum was not the issue involved in Griswold. Where Romney avoided the discussion, Santorum went full-speed ahead, talking about how the Griswold court found the personal privacy right through "penumbras" -- a reference to the Supreme Court's opinion by Justice William O. Douglas, where he explained the privacy right the court was describing:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516-522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Of that, Santorum said, "It created a right through bootstrapping ... I believe it should be overturned."

In addition to Roe, the Griswold opinion had renewed relevance because it provided the constitutional basis for Lawrence v. Texas, which ended sodomy laws in the country in 2003. Lawrence, then formed the basis for the Massachusetts Supreme Judicial Court's opinion in Goodridge v. Department of Public Health, which allowed for same-sex couples to marry in the state where Romney was governor.

That path, with which Romney is very familiar, is why Romney quickly moved from the question asked to discussion of same-sex couples and the debate over their right to marry.

Former House speaker Newt Gingrich raised the question of religious organizations like Catholic Charities and whether they should be forced to recognize such marriages. Romney jumped on to that issue, referencing what he said was the fact that Catholic Charities had to stop offering adoption in Massachusetts following the passage of marriage equality there. [For more on this issue, read Laura Kiritsy's post at Gay & Lesbian Advocates & Defenders, which is based in Massachusetts and represented Goodridge.]

In providing the closest thing to a defense of LGBT equality, former Utah Gov. Jon Huntsman said, "I think there's such a thing as equality under the law." He went on to detail his support for civil unions, calling himself a "traditionalist" for the reason why he does not support marriage equality.

Gingrich, in the course of discussing the issue, specifically discussed "the sacrament of marriage," not government marriage license. When Texas Gov. Rick Perry returned to the topic when another question was raised, he made the attack more directly, referencing what he calls President Obama's "war on religion." Among the bases for reaching that conclusion, Perry said, was the fact that Obama's Department of Justice has stopped defending the Defense of Marriage Act in court.

A follow-up question to Santorum about same-sex couples adopting children led to an odd exchange in which Santorum quickly responded by saying, "This isn't a federal issue, it's a state issue." He then, even more quickly, differentiated that from marriage, which he said was a federal issue because the country needed a single definition of marriage. Finally, he said the question was irrelevant because if the Federal Marriage Amendment passes then there would be "no gay couples." No follow-up question was asked regarding the fact that many states allow unmarried second-parent adoption.

[Image: New Hampshire primary field by Aram Vartian.]

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