Charles Krauthammer

WASHINGTON -- On Wednesday, the Senate fell 18 votes short of the two-thirds majority required to pass a constitutional amendment banning gay marriage. The mainstream media joined Sen. Edward Kennedy in calling the entire debate a distraction from the nation's business and a wedge with which to divide Americans.

Since the main business of Congress is to devise ever more ingenious ways (earmarked and non-earmarked) to waste taxpayers' money, any distraction from the main business is welcome. As for dividing Americans, who came up with the idea of radically altering the most ancient of all social institutions in the first place? Until the last few years, every civilization known to man has defined marriage as between people of opposite sex. To charge with "divisiveness'' those who would do nothing more than resist a radical overturning of that norm is a sign of either gross partisanship or serious dimwittedness.

And that partisanship and dimwittedness obscured the rather interesting substance of the recent Senate debate. It revolved around the two possible grounds for the so-called Marriage Protection Amendment: federalism and popular sovereignty.

Federalism. When one state, such as Massachusetts, adopts gay marriage, the Full Faith and Credit Clause of the Constitution might reasonably be applied to require other states to recognize such marriages, and thus essentially force it upon the rest of the nation. Federalism, however, is meant to allow states the autonomy of social experimentation (as with Oregon's legalization of assisted suicide) from which other states can learn.  It is not intended to force other states to follow.

But it turns out that the Massachusetts experiment has not been forced on other states. No courts have required other states to recognize Massachusetts-performed gay marriages. Gay activists have not pushed it, wisely calculating that it would lead to a huge backlash. Moreover, Congress' Defense of Marriage Act explicitly prevents the state-to-state export of gay marriage.

Should DOMA be overturned, that would justify a constitutional amendment to prevent one state from imposing its will on the other 49. But it has not been overturned. And under the current Supreme Court, it is unlikely to be. The Marriage Protection Amendment is therefore superfluous.

That leaves justification No. 2:

Popular Sovereignty. Gay marriage is a legitimate social issue to be decided democratically. The problem is that imperial judges are legislating their own personal preferences, striking down popular will and calling it constitutional law.

Charles Krauthammer

Charles Krauthammer is a 1987 Pulitzer Prize winner, 1984 National Magazine Award winner, and a columnist for The Washington Post since 1985.

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