Baseball Crank
Covering the Front and Back Pages of the Newspaper
February 26, 2004
LAW/POLITICS: Over The Edge on Gay Marriage, Part I

Well, looks like it's time for me to talk about gay marriage. . . I didn't choose the time or the terms of this debate, but then, neither did President Bush. Keep that in mind.

You see, like any controversy over the intersection of law with the culture, the gay marriage debate has both a substantive aspect (what the right outcome for society should be) and a procedural aspect (how we get there, who legitimizes the decision, how it's enforced). And in this fight, the procedural issue is, in my view, a lot more troubling even than the substance.

On the merits, I first looked at this issue ten years ago, when I was in my first year of law school, and I came down in support of some form of civil union solution; I haven't seen anything to change my mind since then. More on the substantive merits another day (this post is already too long) . . . but I can recall having a debate in my property class with a lesbian woman who thought it highly unrealistic to await a democratic resolution of the issue. She wanted it to come from the courts.

From sources around the blogosphere too numerous to link here, we've tended to see five basic lines of attack against the president's decision to come down in favor of a constitutional amendment on the topic:

1. Ask why anybody cares who else is married.
2. Call the president and other opponents of gay marriage bigots.
3. Ask whether the president doesn't have better things to do than worry about this issue.
4. Argue that we shouldn't go amending the Constitution over this issue.
5. Suggest that this is all politically motivated.

These are deeply misguided arguments, and notwithstanding the fact that many of them are coming from people I otherwise respect and agree with on many other issues, they buy into the thuggish and dishonest tactics of the cultural Left, tactics that have been repeated so many times that those of us who consider ourselves social conservatives know exactly where this is going.

Andrew Sullivan, who's been leading the charge for gay marriage for years, has framed the constitutional issue this way: "All true conservatives need to rally to protect the Constitution from being used unnecessarily for wedge politics."

But this is a severe case of question-begging: to borrow from Jane Galt's formulation, if it's divisive and unnecessary to write a definition of marriage into the Constitution, in part on the grounds that there isn't one in there now and that we shouldn't be enshrining a single answer for all times, isn't it equally divisive and unnecessary to read a definition of marriage into the Constitution for all times, where there isn't one in there now?

After all, that's precisely what - on the state level - the Goodridge court did in Massachusetts, and Sullivan and his (on this issue) allies on the cultural Left celebrated it. Like many conservatives, I say, let this issue be decided by the state legislatures - please. The courts took away the people's right in the states to decide on abortion. And school prayer. And they took away other decisions regarding admittedly foolish laws, like the laws against sodomy and selling contraceptives. In each of those cases, given the complete silence of the Constitution, the courts could have said, "we will not use the Constitution for wedge politics." In each case, they chose a different path. Social conservatives have seen this movie before, and they know how it ends. The federal and state constitutions will be used as a club against them by people who want anything but to have these issues decided by the people's democratic representatives. And when they try to defend their position - who's being divisive?

I have to say: I agree with nearly everything Jonah Goldberg has written on this issue. He was right when he said that social conservatives are probably going to lose this battle, and that we can't just put our heads in the sand and pretend that the question will go away. He's also entirely correct that this fight is being picked by the Left, on its terms, and it's absurd to call conservatives "divisive" for not rolling over and playing dead when they are, after all, on the defensive against a court decision that overturned thousands of years of human experience and hundreds of years of settled assumptions in the law, and against rogue local officials who have precipitated a crisis by issuing marriage licenses that fly in the face of democratically-enacted state laws, including a popular referendum.

In that sense, this is a replay of past battles over the culture, and much of the ferocity of social conservatives comes from a deep sense of "we've lost this way before, this time we have to put a stop to it." If that makes this in some ways a proxy fight over abortion . . . well, thank Harry Blackmun for that. Over and over again, we've seen the same tactics from the Left: (1) use the courts to make dramatic changes; (2) immediately declare any attempt to alter those decisions through the democratic process "divisive"; (3) call conservatives "bigots."

We know how the Left will proceed here, having seen this all before. In the Congress, they will frame this as a civil rights issue and contend that majoritarian preferences shouldn't trump the legal process; in the courts, they will point to changing social consensus to effectively urge the judges to place the popular will (i.e., the opinions of the judges and their friends) ahead of the text of the law. The singular goal, at all times, will be to evade having the matter decided by a democratically legitimate authority, whether it be a legislature, a referendum, or any provision of the constitution.

I'll make a prediction right here, one that I dare any gay marriage supporter to disagree with:

Gay marriage will become the law of the land without any state legislature ever having voted it into law, without a majority of either house of Congress ever having voted in favor of gay marriage, without any statewide popular referendum ever having voted in favor of gay marriage, and without any state or federal constitutional provision ever having explicitly authorized it.

If you're not willing to disagree with that one, spare me the hypcritical blather about how conservatives shouldn't tinker with the constitution. To those who say, "trust us, don't amend the constitution, each state will get to decide" . . . when have the courts ever given social conservatives reason to believe that? It won't happen that way. I'd love to support an amendment that simply guarantees that the issue would be worked out by state legislatures (like James Taranto's suggestion), but if the only way to prevent a judicial takeover is to support a more broadly-worded amendment, many of us may feel we have no realistic choice.

In a sane world, we'd let the state legislatures handle this, as any good federalist would want. (As I've noted before, resort to state courts is no friend of federalism; Goldberg also notes the obvious disinterest in its bedrock principles by the proponents of gay marriage.) And on the merits, I tend to agree again with Goldberg that the best answer is to enact the incremental, yet in itself radically novel, measure of civil unions in at least some states and see how they work, giving our democratic representatives time and perspective to sort through the many legal implications (see below) of the marital relation. I'd be perfectly happy with that.

And you know what? If my state legislature decided to vote to change the law and let gays marry . . . I'd disagree with that, but it's not the end of the world. It would bother me a bit, but it would hardly burn me up. But what does stick in my craw rather severely is the Goodridge approach of having a bunch of judges pronounce not only a change in the thousands-of-years-old definition of marriage, but also that there is no rational basis whatsoever for that institution as it has always existed. Again, Goldberg is on target here: we're being asked to swallow a legal declaration that our longstanding and sacred institutions have no meaning, and we're supposed to smile when they tell us that. Why shouldn't that bother me? Mary Ann Glendon hits another key point, and given how this issue has unfolded in Europe and Canada, she's hardly being hyperbolic:

Religious freedom, too, is at stake. As much as one may wish to live and let live, the experience in other countries reveals that once these arrangements become law, there will be no live-and-let-live policy for those who differ. Gay-marriage proponents use the language of openness, tolerance and diversity, yet one foreseeable effect of their success will be to usher in an era of intolerance and discrimination the likes of which we have rarely seen before. Every person and every religion that disagrees will be labeled as bigoted and openly discriminated against. The ax will fall most heavily on religious persons and groups that don't go along. Religious institutions will be hit with lawsuits if they refuse to compromise their principles.

As to the other points above . . . on argument #1, I have to agree with what Atrios wrote on this (yes, I can't believe that I just wrote that either): like it or not, the government is in the marriage business, and pervasively so: as Atrios notes, a 1999 GAO study found more than 1,000 rights and benefits of civil marriage. As some of your more reasonable libertarian types like NZ Bear have recognized, disentangling marriage from the law isn't going to happen any time soon.

Which means the law has to deal with this. And there are real financial consequences, among other things, as Glendon has noted: for example, if gay marriage is declared a constitutional right, there could be hugely expensive claims for retroactive benefits from various federal entitlement programs, and resources will inevitably be diverted from existing programs directed to traditional families.

And that gets us to objection #3: as long as this is an issue that both the federal and state governments are going to have to deal with, how can you fault the president for taking a position? John Kerry may claim that Bush hasn't always followed through on his positions (claiming that "the single biggest say-one-thing-and-do-another administration in the modern history in this country"), but as I've noted before, at least Bush makes sure you know exactly where he stands, as opposed to Kerry's preferred tactic of saying one thing, then saying its opposite, then doing nothing at all. This is also the answer to the "it's all politics" charge (#5): you can argue all you want about Bush's motives, but, as Allahpundit has all-too-vividly illustrated, Bush's position on this issue has always been clear. Should he ignore the issue? As John Edwards has noted, the president needs to be able to "walk and chew gum at the same time" - and that means taking positions on tough domestic issues even while prosecuting the war on terror, and even while his chief opponents are hiding behind a fog of evasions so thick that even their supporters can't figure out where they stand.

Posted by Baseball Crank at 07:45 AM | Law • | Politics 2004 | Comments (19) | TrackBack (0)
Comments

Well-written and pretty much exactly in line with my thoughts.

My only concern: I’m also a supporter of federalism and would prefer this to be democratically resolved at the state level. However, wouldn’t that create big Full Faith and Credit issues, absent some kind of amendment or federal law? I know you’ve covered some of this before. It just seems to me that marriage involves a person’s STATUS and it's hard to resolve that on a state-by-state level without it impacing other states that disagree (like doing immigration on a state level – someone pretty much either has to be a citizen or not). There's probably a solution though.

One other obvious point – amending the Constitution is really, really hard. Bush is proposing amending it by actually going through the difficult process of actually amending it. Supporters of gay marriage are seeking to amend it by simply saying it currently mandates something it doesn’t. Who’s being radical here?

Posted by: The Mad Hibernian at February 26, 2004 10:00 AM

Ahem, supporters of gay marriage are not trying to ammend the constitution. Supporters of gay marriage are saying that preventing marriage between couples of the same sex is unconstitutional.

Bush wants to make a constitutional ammendment saying otherwise.

In other words, if preventing marriage between couples of the same sex were constitutional....

....there'd be no reason to pursue an ammendment.

Still wondering who's being radical here?

Posted by: C Giddy at February 26, 2004 01:03 PM

That is never how marriage in the United States has been understood. It certainly wasn't when the federal Equal Protection Clause was written. I’m not an expert on every state constitution, but I imagine the same is true in each of those cases.

Preventing something is only unconstitutional if there is a constitution which says, and means, that something must be allowed. The Constitution clearly doesn’t prohibit gay marriage, but it just as clearly does not mandate it.

Posted by: The Mad Hibernian at February 26, 2004 01:28 PM

The first question is, whether state statutes permit gay marriage, or whether federal statutes define marriage in a way that permits gay marriages not recognized by the states. In most cases, I suspect they clearly do not (this is particularly true in states like California that have made this explicit via voter referendum). Assuming that this is true, and has been since the founding of the Republic, then the question becomes whether the federal or state constitutions, being silent on the matter, are read for the first time as holding that all existing marriage statutes are unconstitutional and have been for a century and a half. It's pretty hard to answer "yes" to the latter without admitting that (1) this is a radical new step that will change the definition of marriage as it has always existed in the past, and (2) it's one that inserts the constitution into a divisive social issue to which which it had never been thought previously to apply.

Posted by: The Crank at February 26, 2004 01:38 PM

Nor does the constitution "mandate" that people of the opposite sex should be able to enter a legally recognized agreement known as marriage. But they still do.

If two people of the same sex want to spend the rest of their lives together....they should be conferred the same benefits by the state as those that are conferred to a married couple. And if this is the case, then the only thing being argued here is semantics. A rose by any other name is still a rose. Unless of course the FMA is going to not allow the benefits of marriage to other dedicated couples. Thats discrimination.

On the other hand, I don't think that a church should be mandated to allow gay marriages. If they don't want to perform them, so be it. I think they should have the right to make this decision without being forced to do so by the law. But if they want to allow them, more power to them.

As for the sanctity of the institution, the most basic institution in civilization...give me a break. I know enough childless marriages, enough unhappy marriages, enough broken marriages and divorces to make those comments laughable. Dubya should take a look at his brother.

Dubya is the President, as such the highest charge he has to keep is the defense of the constitution.

In being the arbiter of what is and what is not holy and basic to civilization...he has overstepped his bounds.

Posted by: C Giddy at February 26, 2004 02:27 PM

Love it. I have a (non-rhetorical) question, and a Bold Prediction.

First, I can easily see a day when the Ninth Circuit in California discovers a right to gay marriage in the Constitution. But do we really think that the current US Supreme Court will go along?

And the Bold Prediction - having come down on the side of the Federal Marriage Amendment as a concept, without backing specific wording, Bush can step back a bit from this debate and let Congress (which seems eager to punt) hash this out. Although the true social conservatives will be worried that it does not go far enough, the Taranto/Ponnuru compromise you endorse could easily be a winner.

Posted by: TM at February 26, 2004 02:48 PM

Did Bush just unilaterally amend the Constitution and I missed it? I was under the impression that our legislators (i.e. our elected Congressional representatives) were going to be the ones drawing up and voting on the amendment. I thought 2/3's of them still had to propose the amendment and 3/4's had to still ratify it? My bad.

The other problems with marriage are completely separate matters. I’m all for strengthening marriages and families as institutions. But that has nothing to do with the constitutional issues here.

Posted by: The Mad Hibernian at February 26, 2004 02:49 PM

It may actually be the case that the current Supreme Court (i.e., O'Connor and Kennedy) could be influenced by what the political branches are doing. If elected officials do nothing, I can easily see O'Connor in particular signing on to an Equal Protection decision in favor of gay marriage.

I see Taranto's still flogging his solution. It really would put Kerry in a terrible box, even worse than the current situation in which he espouses a position that he himself has descibed as bigoted.

Posted by: The Crank at February 26, 2004 03:11 PM

Does the Constitution grant rights to the people or does it limit the ability of government to restict the rights of the people?
Since adulterers do not go to jail, the government really just serves as bookkeepers in the marriage business. As such, I have no problem with the term, "civil unions." My wife and I were not married in a church, so the Catholic church does not recognize my marriage. I consider us married, but would not really care too much if we were legally considered civilly united.
There is a problem with states having different laws on the matter. The Amendment that should be passed would recognized civil unions. Then if a state votes for marriage, a couple can be married there and still be recognized as united throughout the states.

Posted by: Zoof at February 26, 2004 03:51 PM

Kerry is in a conflicted position.

Religiously he obviously has issues with gay marriage.

But constitutionally he has issues discriminating against anyone.

People will claim he wants to have it both ways. But its just as likely to claim that he sees the grey, the nuance, that will conflict any politician who wants to both honor the religions of his constituants and the separation of church and state put forth in the constitution he ultimately serves.

Bush doesn't see it that way, as evidenced by his actions regarding stem cell research.

And yes, I'll grant you that Kerry has more than likely shaped his decision in part based upon recent polls.

Posted by: C Giddy at February 26, 2004 04:19 PM

First, I should say that I spend all of my "political" time on lefty sites like Kos and Calpundit. I came here for the baseball, but have enjoyed the peek at how the other side of the political spectrum operates. Sometimes there are predictable differences, sometimes the differences are subtle, sometimes I even agree.

Since I don't quite have a handle on how Dan thinks on every issue yet, I was really curious what his take on this would be. Is he so conservative that he recoils at the very thought of mucking with the Constitution? Is he religious and will jump right on board? I actually imagined a pretty straight-up Republican-type that always tries to take the President's side, gives him the benefit of the doubt, or strains to come to his defense because he won't roundly criticize him. I still don't have you fleshed all the way out, Dan, but your opinion on this matter is pretty clear. And far, far from mine.

I think we are going to have to agree to disagree. There is nothing either one of us is going to write that is likely to change the mind of the other. That much is quite clear. (I'm throwing you in on that too, TMH.)

I was also curious to see a well laid-out explanation of the other side of this Amemdment issue, since I have spent the last two days in my own mindset and on blogs that hold a similar stance to my own. Your essay is long, and well-written and you obviously (as a lawyer) have a much greater knowledge of the law than I, but for all your analysis, all I see is as a completely partisan interpretation of the issue and its specifics.

A couple of specific counterpoints:

First, from TMH's comment up top:
nobody's claiming the Constitution mandates anything. Where do you get that? Off the top of my head, I can't think of anything it mandates, it guarantees rights; to bear arms, free speech, etc. You don't have to own a gun...

On Crank's Five "Lines of Attack":
1. This is the big one. I really do not see why two guys getting married in San Francisco undermines, threatens, mocks or effects in any way your marraige in NY, mine in MI, or George W. Bush's in DC or Texas. It's got nothing to do with you. You can have a problem with it if you like, but that doesn't mean (even if you are the majority) should get to alter the Constitution to prevent it.

2. You haven't heard that shit from me. If you are curious all, my posts at Kos are available here. Despite my namesake, I try to keep it civil.

3. Believe me, he does.

4. I would contend this is absolutely the case.

5. In a word. Yup. The actual core ideals behind each side might not be politics, but whole bruhaha sure is.

I don't feel particularly misguided about any of those arguments. I also don't feel thuggish, dishonest or that I've been mislead by the cultural Left.

"I didn't choose the time or the terms of this debate, but then, neither did President Bush. Keep that in mind." I suppose he was blindsided by what was going on in San Francisco? This has been on the agenda for a while. It was in the SOTU address, and was a plank in the Republican platform to be brought out at the time of their choosing. In my opinion, Bush (Rove) looked around and realized: the Dems are motivated at the base and turning out in droves in the primaries; all of Bush's "compassionate conservatism" has been exposed for the empty rhetoric it always was; his middle ground / swing voter issues such as the economy, jobs and national security are either in the tank or beyond his control; and he is in danger of losing his own base with fiscal irresponsibility and failure to deliver to the Christian right on social issues. This is one big plate of red meat for his base, because he has lost the middle. They have not only brought out the trump card too early, but overplayed the hand as well, in my opinion.

Reading, 'riting, radical: Your contention that interpreting the Constitution, as it exists, in a manner you disagree with, is somehow more radical than altering it by amendment is ridiculous on its face. Supporters of this Amendment are worried that a court decision down the road might not go the way they want, so they want to rewrite the rules??!! Now that is radical.

Bush / Kerry: Bush's position has not always been clear. In his "I'm a compassionate uniter" persona, he would avoid this at all costs, and in 2000 on Larry King he said it should be left up to the states. Essentially the same thing as Kerry and Edwards. Bush is certainly allowed to take a stance on whatever he wants, but you shouldn't pretend he has been backed into a corner. He waded right into this with his eyes wide open. Though, for him, I'm not sure what that means.

Your big bold "challenge" paragraph: That may very well end up being the case. I don't disagree with it, and I don't have a problem with it.


As far as states deciding this stuff and the whole Federalism approach. It's a cop-out and a crock. State's Rights worked out pretty well forty years ago, too. I think this is a civil rights issue. Now I don't really have a dog in this fight (any more or less than you, IMO), but I know what I feel is fair and equal treatment under the Law. "Marriage" should be up to churches, society and the particular people involved and the Government's involvement should begin and end at the license, and they should be blind to race, religion, gender, and sexual orientation the applicants.

All of that said, the waaay Left is handling this badly, and has just as good a chance of hampering their cause as progressing it. Civil unions are fine by me, and should be a satisfactory interim step for the gay community too. Civil unions for some and marraige for others sounds a lot like the "separate but equal" of the old South. That's because it is. But social change like this can be slow, and they shouldn't overreach either. Even state by state would be something more than they have now.

In thirty years we'll look back at this and wonder what all the fuss was about.

Posted by: Mr Furious at February 27, 2004 03:00 AM

Crank sez:

"But this is a severe case of question-begging: to borrow from Jane Galt's formulation, if it's divisive and unnecessary to write a definition of marriage into the Constitution, in part on the grounds that there isn't one in there now and that we shouldn't be enshrining a single answer for all times, isn't it equally divisive and unnecessary to read a definition of marriage into the Constitution for all times, where there isn't one in there now?"

Well, pardon me, but the 14th amendment has been around quite a little while. It seems from the tone of your blog entry that you believe that the people and courts should just wait around on the legislatures to voluntarily start writing laws that give equal protection to all citizens. I respectfully disagree.

This isn't a "social" or "cultural" issue. It's a civil rights issue and a Constitutional issue.

Bush, et al, see the inevitability that the courts will demand equal protection in the near future. The hate amendment is an end run around that process. It's as simple as that.

P.S. "Separate but Equal" may be a good compromise for homosexuals hoping not to overreach on a matter of social change. I think most of them would be happy with it. In fact it is a pretty good solution - giving homosexuals all but one of the same rights as heterosexuals. On the grounds of constitutional principle, though, equal protection on all rights but one is insufficient.

Posted by: smijer at February 27, 2004 07:19 AM

For clarification purposes, when I say “mandates” I mean the Constitution guarantees that something must be permitted, if someone chooses to do it.

For example, free speech. Obviously, the Constitution does not mandate that we speak, but, in a general sense, prohibits the government from prohibiting us from speaking. We’re talking about the same thing here – it’s a distinction without a difference.

As for the core issue here, the Constitution is utterly silent on this question, thus I do not see how you can read in guarantees of gay marriage without either amending it or simply reading in something which isn’t there and wasn’t intended to be. It is a determination of values, not legal interpretation, and values should be determined by the populace, not judges whose values are no better than yours or mine and who are not elected representatives. This is a question for the people.

P.S. I'm also not "mad" - its just a stupid name.

Posted by: The Mad Hibernian at February 27, 2004 09:42 AM

Also:

"Your contention that interpreting the Constitution, as it exists, in a manner you disagree with, is somehow more radical than altering it by amendment is ridiculous on its face."

That is what the amendment process is there for - to allow people to alter the constitution. No one is suggesting the world should be frozen in 1789 - the Constitution must sometimes change. Is democracy better served by having 5 of 9 unelected judges determine how it should change or 75% of our elected officials?

You need to look at things from the other side - if things you disagreed with were being read into the Constitution as inalienable rights, what recourse would you as a citizen have? With amendments, even really bad ones can be corrected by popular will. Prohibition, as foolish a public policy as there has ever been, was enacted and repealed by amendment.

I'll try and shut up for awhile now, but constitutional law gets me fired up...

Posted by: The Mad Hibernian at February 27, 2004 10:28 AM

Also:

"Your contention that interpreting the Constitution, as it exists, in a manner you disagree with, is somehow more radical than altering it by amendment is ridiculous on its face."

That is what the amendment process is there for - to allow people to alter the constitution. No one is suggesting the world should be frozen in 1789 - the Constitution must sometimes change. Is democracy better served by having 5 of 9 unelected judges determine how it should change or 75% of our elected officials?

You need to look at things from the other side - if things you disagreed with were being read into the Constitution as inalienable rights, what recourse would you as a citizen have? With amendments, even really bad ones can be corrected by popular will. Prohibition, as foolish a public policy as there has ever been, was enacted and repealed by amendment.

I'll try and shut up for awhile now, but constitutional law gets me fired up...

Posted by: The Mad Hibernian at February 27, 2004 10:29 AM

The Constitution also doesn't explicitly say that segregation is prohibited. It doesn't say bans on interracial marriage are prohibited. It doesn't say bans on flag burning are prohibited. It doesn't say bans on pornograpy are prohibited. It doesn't say racial quotas are prohibited. Are these also things that we should be pushing for an amendment to overturn the courts' decisions? I think it's legitimate to say "You may disagree with the decision, but is this really something worth amending the constitution over?" It may be worth it, but I think one needs to justify it by more than just "we always did things this way until the court made us change". There has to be some question about substance to justify why the process objection rises to such a level.

..that there is no rational basis whatsoever for that institution as it has always existed

The Goodridge court did not say this. In a footnote they noted that there may have been a rational basis for marriage as it existed in the past. What could this be? Well, in the past thousand years marriage has defined certain gender specific roles. It is only very recently--and not in every state even now--that the legal rights and obligations of marriage have not depended on gender. This elimination certainly could have eliminated some rationales for sex-based entry requirements. Even if one believes a rational basis still exists, it is fair to say that marriage has changed over history and those changes could have some consequences on what legitimate interests could be used to justify the sex-based classification.

Posted by: Gabriel Rosenberg at February 27, 2004 02:13 PM

One last last thing from me – I think I earlier misstated the requirement for passing an amendment. It is, correct me if I’m wrong again – 2/3’s of both houses of Congress to propose and 3/4's of the STATES to ratify. The point remains – it’s mighty hard to do.

Sorry about that. We didn’t all go to Harvard here.

Posted by: The Mad Hibernian at February 27, 2004 02:56 PM

BaseballCrank:"Over and over again, we've seen the same tactics from the Left: (1) use the courts to make dramatic changes; (2) immediately declare any attempt to alter those decisions through the democratic process "divisive"; (3) call conservatives "bigots.""

Oh, you poor dears! It's not history's oppressed races and creeds and women who were victims. It was the poor social conservatives. My heart bleeds for y'all. Your complaint would be more interesting if you gave us some examples of the left calling social conservatives "bigots" when social conservatives weren't actually being "bigots".

I'm sure the Crank is a decent guy on this issue and there are plenty of other very decent people who are making the case for states rights and civil unions. That said, unless it's a temporary political position to give the country a few years to get comfortable with gay marriage, it's still not enough.

Equality in marriage rights is the only long-term position that's right, here. Anything else is discrimination against gays and lesbians, short and simple.

What's changed in the last quarter-century has nothing to do with the traditions of marriage. What's changed is that the population is coming to believe that being gay or lesbian is probably an immutable characteristic, that it's probably hardwired into our beings. The science isn't quite there yet, but it's closing in on that. And I guess we can say that more and more people believe that being gay or lesbian isn't harmful, even if it's not aescetically pleasing.

That's where the equal protection clause comes in. It's not enough to say that the Radical Republicans of the late 1860s would have been appalled at the idea that their constitutional amendment would have been used to give gays and lesbians the right to marry. I'm sure they would have. But I'm also sure it didn't occur to them that homosexuality was an immutable characteristic. Their ancestors have come to that conclusion and it's more than coincidental that the states where abolitionism was stongest are the states where gay rights is strongest.

Western Democracy is majority rule with respect for the rights of minorities and individuals. Generally speaking, the legislative and executive branches tend to represent the majority POV, while the courts balance that out with a respect for the rights of individuals and minorities, including btw property owners. There's nothing special about waiting around for the majority to fully respect the basic human rights of all people. If there's not a rational basis for discrimination, the courts have a duty overturn even traditional statutes.

If social conservatives can't come up with a better defense of discrimination in marriage than tradition, they should quit fretting that someone moved their cheese.

Posted by: withrow at March 1, 2004 10:28 PM

You quote Mary Anne Glendon as saying, "person and every religion that disagrees will be labeled as bigoted and openly discriminated against."

Well, they ought to be labeled bigoted - because denying gay marriage *is* biggotted and prejudicial, and you can't hide bigotry under the excuse of religion. Whether or not the law or constitution recognizes these marriages, or whether or not history recognizes them, or whether or not some church would prefer to believe this or that about gay people, that doesn't mean that it is not bigotry and prejudice. Just because slavery existed for thousands of years and enjoyed many precedents and legal standing in our constitution and in the interpretation of the constitution, as well as the support of various religions, that did not mean that it was not a prejudicial and biggotted practice that deserved to be eradicated - and we don't let religious insitutions have an exemption to owning slaves.

It is amazing to me to hear just this kind of "reletavism" from social conservatives - that is, arguing *against* the fundamental fact that discrimination against gay people is just plain morally wrong, whetever the law might say. Your argument seems simply a relativistic attempt to justify descrimination in the name of one religious view or another legalistic point of view that boils down to saying that it is not "really" discrimination simply because you believe it isn't (because you've never experienced anything else yourself, becuase this is all you understand marriage to be about, etc.). If you knew anything about history or nature you would know that homosexuality is natural and there are historical precedents for gay marriage.

Besides, obviously, just because a practice has historical or legal precendent (i.e., "opposite-sex only marriage") doesn't mean it isn't bigotted. I think that what you social conservatives need to confront is, how do you make a rational decision about which historical practices are sound, and which deserve to be changed becuase they deny fundamental human rights. I agree that this should be a careful determination that requires public discussion and a building of understanding - it is not a slippery slope arguing that every institution needs to be smashed everywhere (the position of the anarchists). For one, I think it requires some imagination, compassion, and understanding, which you social conservatives seem to lack in abundance.

Study the Massechusettes Supreme Court decision. They are not simply gallavanting off into a netherworld; they base their decision on just this sort of compassionate, reasoned understanding of the lives of gay peole and a judicious, studied review of the discriminatory effects of denying the right to marry to gay couples (and the proven benefits to society that accrue by giving them equal rights with straight couples).

It took a war to end slavery. As you say, change - when it is just - will innevitably come.

Posted by: Reasoner at March 18, 2004 06:24 PM
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