Judges vs. marriage

Bill Murchison
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Posted: Jul 13, 2004 12:00 AM

 Well, just who's happy that the Senate this week is debating the Federal Marriage Amendment, defining marriage as the union exclusively of a man and a woman?

 Are Democrats happy? Not hugely. For all that they meant the whole time to sink the amendment on a procedural vote, there is the inconvenience of the thing, the necessity of -- one more time -- reminding the electorate that Democrats aren't hot to defend traditional cultural norms.

 Are Republicans happy? To the extent, perhaps, that the issue finally gets out in the sunshine. But out in the sunshine, the party's inability to pass such an amendment, and gratify an important constituency, will show up all the more clearly.

 I think nonetheless a bigger disheartenment lies in store for amendment backers. It is knowledge -- the in-your-face variety -- of how things get done in modern America.

 Here's how they get done: You get the media and the judiciary on your side; they do the rest.

 That sounds like elitism? Elitism it is: meaning the capacity, enjoyed by a select, like-minded few, to shove social change down the more numerous throats of others ill-prepared for said change.

 The reason the Senate has been debating the constitutional amendment is that courts -- notably the highest Massachusetts court -- has been foisting on the population a conceptual overhaul of the oldest human institution there is: marriage. The Massachusetts judges, ordering the state to legitimate same-sex unions, proclaimed the existence of "an evolving paradigm" regarding marriage. Now you see the historic understanding; now you don't.

 Oh? And how did the judges know? Well, a little bird or, likelier, television, notable newspapers and magazines told them. When you have evolving paradigms, the last thing you're to look for is stability of understanding. Yesterday's truth, in the evolving-paradigm department, is tomorrow's cranky opinion.

 I'll wager you just noted a seeming inconsistency. Aren't court decisions known as "opinions"? They certainly are, which is one reason courts used to be fairly modest when it came to shaking up institutions. This was becoming in the judges. They recognized, to one degree or another, that democratic government rests on the consent of the governed, not the consent of those who do the governing.

 Gone with the wind! For 30 or 40 years, judges have been flattering themselves that their own acute readings of social necessity and paradigms exceeded those of lesser folk. A moment ago, I mentioned the media. The media's consent is instrumental in matters like the pending overthrow of marriage as an exclusively heterosexual institution. The media's fascination with gay rights has invested the quest for such rights with an authority it never before enjoyed. Judges can't help but notice such things.

 And that's where we are today: trying halfheartedly (if we're talking about Congress) to let the people's will prevail over that of judges with respect to marriage. But there isn't the kind of unanimity you would expect on this question, perhaps because people have grown used to judges running their lives and consequently put little stock in those constitutional amendments (anti-busing, pro-school prayer, anti-abortion, anti-flag burning, etc.) that congressmen talk about but never seem to pass.

 Granted, the constitutional amendment process is arduous and complex. Any amendment Congress really wants requires two-thirds votes in both houses and ratification by three-fourths of the states. That can be a tall order, especially in the matter of an evolving paradigm. When you're being forward-kicked by men and women in judicial robes, the temptation is to suppose they can't be altogether mischievous in their assumptions.

 Well, they are in the case of marriage: an institution older than the Constitution and never before considered open-ended except maybe in Las Vegas. The judges are as wrong as can be, but setting them right -- that's a challenge possibly beyond our present representatives. When the harm and gross stupidity of the attack on marriage becomes more apparent -- that may be when we'll finally do something, if it isn't too late.