Debating marriage

Posted: Feb 27, 2004 12:00 AM

WASHINGTON -- Not again. We are the only Western country to have legalized abortion by judicial fiat rather than by democratic approval of the people or the legislature. Are we going to do it again with gay marriage?

We know what short-circuiting democracy does. Thirty years after Roe v. Wade, abortion still brings masses of demonstrators into the streets. Roe v. Wade, Ruth Bader Ginsburg once said, ``halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.''

A similar ``reform direction'' on homosexuality has been under way for years. There is no doubt that increasing tolerance of homosexuality, reappraisal of marriage, and common sympathy for fellow citizens would have led inexorably to the spread of civil unions (which I favor) -- and, as they became customary and were evaluated in the light of experience, perhaps ultimately to broad acceptance of gay marriage as well.

Instead, the courts have once again been commandeered to impose a revolution from on high.

At least abortion was dictated by the national committee of wise men, aka the Supreme Court. But because of the Full Faith and Credit Clause of the Constitution (which makes every state have to accept ``the public Acts, Records, and judicial Proceedings of every other State''), gay marriage can be imposed on the entire country by a bare majority of the state supreme court of but one of the 50 states. This, in a country where about 60 percent of the citizenry oppose gay marriage.

President Bush supports a constitutional amendment to define marriage as the union between a man and a woman. I am troubled by any constitutional amendment that is not about democratic governance. But the activists have forced the issue. What is the alternative to nationalized gay marriage imposed by the Supreme Judicial Court of Massachusetts?

The 1996 Defense of Marriage Act? Nonsense. It pretends to allow the states to reject marriage licenses issued in other states. But there is not a chance in hell that the Supreme Court will uphold it.

Predictably, Massachusetts Democrats are on the attack. John Kerry charges the president with seeking ``a wedge issue to divide the American people.'' Ted Kennedy amplifies: ``It's about politics -- an attempt to drive a wedge between one group of citizens and the rest of the country, solely for partisan advantage.''

Wedge? Marriage has been around for, oh, 5,000 years. In every society, in every place, in every time it has been defined as an opposite-sex union. Then four robed eminences in Boston decree otherwise. With the stroke of a pen, they radically redefine the most ancient of all social institutions. And then those not quite prepared to accept this undebated, unlegislated, unvoted, unnegotiated revolution are the ones accused of creating a political wedge!

Who is dividing the country? Was it the Republican National Committee that told the Massachusetts court to make May 17, the midst of a hotly contested election year, the day on which gay marriage is to be imposed for the first time in America?

A front page Washington Post ``analysis'' piece asserts that with the constitutional amendment the

president is ready ``to rekindle the culture wars.'' Who did the kindling here? It was the mayor of San Francisco who, in violation of California law and in the middle of the 2004 election campaign, issued the first same-sex marriage licenses in American history.

Bush had no desire to get involved in this issue. If not for the activism in Boston and San Francisco, it would not be an election issue at all. Boston and San Francisco have made the question very stark: We are going to have national gay marriage or we are not. ``States' rights'' is a phony -- and ironic -- alternative that will not withstand constitutional muster.

I welcome the debate on the constitutional amendment because it will shift the locus of this issue from unelected judges to where it belongs: the House and the Senate and the 50 state legislatures. In the end, however, I would probably vote against the amendment because for me the sanctity of the Constitution trumps everything, even marriage. Moreover, I would be loath to see some future democratic consensus in favor of gay marriage blocked by such an amendment.

Nonetheless, that does not render the abusive, ad hominem charges made by the marriage revolutionaries -- that it is their opponents who are divisive and partisan -- any less hypocritical. Gay activists and their judges have every right to revolution. They have every right to make their case. But they deserve to be excoriated when, having thrown their cultural Molotov cocktail and finding that the majority of Americans have the temerity to resist, they cry: culture war!