Amendment to Ban Gay Marriage?

This is a partial transcript of "Special Report with Brit Hume", Feb. 25, that has been edited for clarity.

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JIM ANGLE, GUEST-HOST: As everyone knows by now, the president is calling on Congress to pass a constitutional amendment defining marriage as a union between a man and a woman. It has received lukewarm reception from some Republican leaders in the House.

But one Republican member of Congress was way ahead of the president on this one. Marilyn Musgrave introduced legislation for a constitutional amendment nine months ago. And she joins us now to talk about an issue that will be a staple of the campaign year.

Congresswoman, thanks for joining us.

REP. MARILYN MUSGRAVE (R), COLORADO: You're very welcome.

ANGLE: Let me ask you first. You introduced this about nine months ago. What has happened in the meantime?

MUSGRAVE: Well, the Supreme Court has issued some rulings and the Massachusetts Supreme Court, of course, is telling the legislature that it must act on gay marriage. And then we have situations like the rogue mayor in San Francisco just flaunting the law, not being respective of the law in California and telling the county clerk to issue gay marriage license. So, it is all over the news right now.

ANGLE: So, you're saying this issue is even more ripe than it was when you proposed the amendment?

MUSGRAVE: Ah, very much so.

ANGLE: Yes. Now, many Republicans, and even some Democrats who were against gay marriage, are cool to the idea of trying to amend the Constitution. It is a major undertaking, as the president acknowledged. Why go that route? Why is that the best way to try to -- to try to ban gay marriage?

MUSGRAVE: Well, you say people are cool to amending the Constitution. I think we take that very seriously. We can be cavalier about amending the Constitution. But I really believe that that is the only way to keep the Massachusetts Supreme Court from forcing gay marriage on the entire nation.

ANGLE: Now, let me ask you this, though. We have got the Defense of Marriage Act, which protects states from being forced to recognize gay marriage in another state.

Let's say someone were to get married in Massachusetts if, in fact, they moved down that road. They move to Virginia and have some legal matter that requires the state to, in a sense, judge whether or not this is a legal union. At that point, they could, obviously, challenge the Defense of Marriage Act if the states said we don't recognize your union.

MUSGRAVE: Oh, the challenge will begin. It will.

ANGLE: You're certain. You have no question in your mind?

MUSGRAVE: No question in my mind. And I believe that recent Supreme Court rulings indicate that we know how the Supreme Court will rule on this.

ANGLE: How is that?

MUSGRAVE: Oh, I believe that they have made in effect by their rulings homosexual sodomy a constitutional right. And you know, those writing for the minority talked about how this would affect gay marriage. And I believe that's definitely where the Supreme Court is headed.

ANGLE: But this is generally considered a conservative Supreme Court. You're convinced that if this came up, if the Defense of Marriage Act came up, that they would, in fact, rule in some way they would actually -- part of their ruling would be that gay marriage is a civil right?

MUSGRAVE: I believe that is what would happen. Many legal scholars believe that DOMA will be tossed and the way to address this is only by a constitutional amendment. And again, you know, very high standard for a constitutional amendment should not be done lightly.

But a super majority in the House and the Senate, 38 states having to ratify. You know, it's a very strong statement if a constitutional amendment passes. But I believe marriage is that important.

ANGLE: Isn't it also possible that moving through the court system would be quicker than the constitutional system? And we've had some amendments that have been approved quickly, like giving 18-year-olds the vote; it was three months.

Some, like forbidding Congress from giving itself a pay raise in an intervening election took 203 years. ERA failed after 10 years. Courts could move fairly quickly on this. Wouldn't that get to a resolution more quickly, and then you could determine whether to go for a constitutional amendment?

MUSGRAVE: Well, they could move quickly. I have very little confidence in the courts right now. I believe that the activist judges are really the problem that we're facing. We have three distinct branches of government, but the judicial branch seems to think that now they are -- they can be in the business of legislating. And so that is why a constitutional amendment is appropriate right now.

We -- we have four judges in the state of Massachusetts that could force gay marriage on the entire nation. We have 38 states now that have passed Defense of Marriage Acts, clearly stating that a marriage is a union between one man and one woman. But I do not believe DOMA will stand.

ANGLE: Now, your amendment would allow states to decide about civil unions.

MUSGRAVE: Yes, it would. This has been a question that I've asked all along. It would reign in the federal judges and the state judges, so there would not be state courts imposing civil unions.

However, the state legislature can decide contractual agreements, benefits. That's up to the state legislatures. I do not support civil unions, but I do support legislators being able to make those decisions in their state.

ANGLE: You don't want courts setting social policy, but it is OK for legislatures?

MUSGRAVE: Exactly.

ANGLE: OK.

MUSGRAVE: It is appropriate.

ANGLE: Congresswoman, thank you very much for joining us.

MUSGRAVE: You're welcome.

ANGLE: We appreciate it.

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