Toying with marriage

Friday, July 16, 2004

The Wall Street Journal

If all goes as expected, the Senate today [Wednesday] will vote on the Federal Marriage Amendment. But because it is a procedural vote, we won't be getting what the American people are really entitled to here: an honest, open debate.

We'll fly our own colors up front. We oppose the Allard-Musgrave amendment at the center of today's procedural vote, on the grounds that it overreaches. Instead of some national definition of marriage, we'd prefer an amendment that reserves issues of family law for the arena where the Founders wanted such issues handled: the American people, acting through their elected state representatives.

This is more or less the position favored by the Republican chairman of the Senate Judiciary Committee, Orrin Hatch. And it's telling that it's not even on the table. Right now, the only proposal for consideration is the Allard-Musgrave version whose first sentence defines marriage as a union between a man and a woman and whose second decrees that no court can construe constitutions, state or federal, to say otherwise.

Needless to say, the Allard amendment doesn't even begin to cover the spectrum of American public opinion on the subject. Leave aside those who believe gay marriage is a right. Even within the camp that believes society has a stake in upholding traditional marriage, there are serious divisions. President Bush, for example, supports the Allard version. But much conservative opinion opposes Allard as too liberal, on the grounds that it doesn't forbid civil unions and the like.

In the U.S. system, we elect legislators to sort out these messy issues and reach some working social consensus. Unfortunately that's exactly what too many in Congress don't want to do. Democrats led by Harry Reid agreed to allow the Senate to hold an up or down vote -- but only on condition that no other amendment be considered. They reckoned that not only would the amendment be defeated, but that they'd get some political cover from Republicans dissatisfied with the Allard language.

Republicans haven't been much better. Some want Democrats to block a debate so they can use that in the fall campaigns. Others are pushing for what they see as an even tougher, one-sentence version defining marriage as a union between a man and a woman and leave it at that. This they also believe is politically expedient, because politicians would have a hard time explaining why they voted against it.

For his part, Mr. Bush has been accused of using the issue for campaign purposes, and no doubt he is listening to his conservative base. But let's remember who made this a national issue. That was done by San Francisco Mayor Gavin Newsom, the Massachusetts Supreme Court and others who put their own personal agendas above current laws. It is revealing that in no case has gay marriage been sanctioned by a legislature, and that the courts, both federal and state, are filled with similar activist litigation.

This path, moreover, has been marked by disingenuousness all the way through. In last year's Lawrence sodomy case, U.S. Supreme Court Justices assured us that it had no implications for gay marriage. But scarcely had the ink dried than the Massachusetts high court was invoking Lawrence to mandate gay marriage. Only a few years back, John Kerry attacked the Defense of Marriage Act (which was signed by Bill Clinton and says states do not have to recognize other states' gay marriages) as "unconstitutional, unprecedented, unnecessary and mean-spirited." Now Mr. Kerry invokes that law to justify his opposition to a constitutional amendment.

Likewise we see a number of born-again federalists, telling us to "leave it to the states." We're all for leaving it to the states. But most of those pushing gay marriage have no intention of doing so, at least if that means the democratic process. What they really mean is let's stop all activity on a Constitutional amendment until the Supreme Court declares gay marriage to be a Constitutional right, in another version of Roe v. Wade.

The litigation all points in this direction. Most telling is Nebraska. In 2000, 70 percent of its voters approved a state constitutional amendment defining marriage as a union between a man and a woman and prohibiting civil unions or domestic partnerships. If activists really believed in leaving this to the states, it's pretty clear Nebraskans have spoken. But this state amendment is being challenged by the ACLU, which hopes to get a federal judge to throw it out. The state's attorney general testified in Congress that he expects the state to lose.

Whatever happens today in the Senate, this is the beginning rather than the end of a debate that will be better served when Congress gets around to letting all sides -- including those who favor gay marriage -- be heard. We understand those who believe that the courts can't be trusted and that the only answer is therefore to define marriage for all time as specifically and categorically as the Allard language does.

But a good rule of thumb is that when it comes to Constitutional remedies, the best answer is usually the more modest one. The best way to address the problem of mayors and courts bent on substituting their own personal agendas for the law is simply to return the decision about recognizing gay marriage to where it truly belongs: with the American people.

(The amendment was scuttled on a 48-50 vote.)

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