Politicians avoid gay marriage debate, leaving action to courts

Posted: Nov 21, 2003 12:00 AM

There's an interesting contradiction at the heart of the gay marriage debate. Everyone agrees that we are well on our way to living in a country where allowing same-sex marriage is the law of the land, and yet virtually no major national politician and neither of the major political parties supports the idea.

When the Massachusetts Supreme Judicial Court ruled that it is flatly irrational and bigoted to oppose gay marriage, no one was surprised when President Bush complained that the court had violated the "principle" that marriage is between a man and a woman.

But many people might be shocked to learn that all of the Democratic presidential frontrunners were quick to declare that they, too, oppose gay marriage.

Howard Dean, who is supposed to be some sort of dashboard saint of cultural liberalism, not only continues to oppose gay marriage but refused to even use the word "marriage" in his statement on the Massachusetts ruling. At least Gephardt, Kerry, Edwards and Lieberman had the gumption to say flatly they oppose same-sex marriage. So do both Clintons, by the way.

But Dean's statement best captures the political paralysis over gay marriage. "As governor of Vermont," Dean declared, "I was proud to sign the nation's first law establishing civil unions for same-sex couples. Today, the Massachusetts Court appears to have taken a similar approach to the Vermont Supreme Court and its decision that led to our civil unions law. One way or another, the state should afford same-sex couples equal treatment under law in areas such as health insurance, hospital visitation and inheritance rights."

Dean's dishonesty is staggering. The Massachusetts court explicitly orders what Dean has said he opposes: same-sex marriage. When he says gays should get equality "one way or another" what he's really saying is, "I don't care what the courts do so long as I don't get blamed for it." The only thing that makes this a "similar approach" to what the Vermont court did is that, once again, an unelected band of judges is forcing elected politicians to do something neither they nor their constituents support - and that's the way the Democrats like it.

People forget, but Dean wasn't quite the proud pioneer on civil unions he now claims to be. The Vermont Supreme Court ordered the state legislature to write and pass a civil unions law. Dean signed it in his office, privately, away from the cameras.

Dean and the other Democrats see that the courts are moving toward a position that is unpopular with the majority of Americans, but popular with the base of the Democratic Party. Allowing the courts to do what you're afraid to do is a profile in cowardice, but a shrewd one.

Meanwhile, Republicans, while a bit more honest about their opposition to gay marriage, are no less squeamish about doing anything about it.

Until now, the White House has largely taken a do-nothing policy toward gay marriage and a moderately pro-gay stance - by conservative standards - in other areas, appointing openly gay officials and treating gay Republican groups with respect. But the White House understands that aggressive opposition to gay marriage is as dangerous for Republicans as aggressive support of gay marriage is for Democrats.

It's a funny stalemate. The Republicans can't afford to be seen as too "anti-gay," lest the Democrats demagogue them with tolerant suburban voters, and Democrats can't afford to be seen as too "pro-gay" lest the GOP demagogue them in Southern and rural states.

So both sides stand there, circling each other like sumo wrestlers, hoping the other side will make the first move. Normally, I would celebrate such inaction, because it would give all sides the opportunity to ponder the issue more. One of the reasons I favor civil unions is that I believe they would forestall gay marriage while at the same time doing right by gays and society on a host of public policy issues.

Though a great many conservatives disagree, civil unions strike me as the right balance between principle and tolerance. Marriage has a specific meaning: a union of a man and a woman. But the state shouldn't bar gays or anyone else from naming heirs or sharing property as they see fit.

But the federal and state courts are blazing ahead of the public and any chance of such compromises. As with abortion and affirmative action, both parties are so scared of seeming "divisive," they'd rather have an unelected judiciary make the tough calls for them. There's no easier dodge for a politician than "It's out of my hands." The end result is a public policy fait accompli, crafted and implemented without democratic input at any level.

In a healthier polity, the Massachusetts legislature and the U.S. Congress would explore impeachment proceedings against the judges who've exceeded their mandates while at the same time displaying the necessary courage to deal with these issues themselves.