Federal Marriage Amendment a bad idea

Posted: Nov 28, 2003 12:00 AM

I guess I'm against the Federal Marriage Amendment.

I know that's not the sort of forthright lead columnists are supposed to start out with.

My wishy-washiness stems in part from the fact that I'm against gay marriage, but I'm also against this "solution." Moreover, I really don't like most of the arguments for or against gay marriage.

Both sides seem to suffer from a nasty case of consequentialism. That's the branch of thinking - of which utilitarianism is a subset - that says that a decision should be judged entirely on the consequences that result from that choice. So, what's wrong with that? Isn't that what politics is about?

Well, yes and no. There are two problems with consequentialism. The first is that, like utilitarianism, it dismisses principle or, worse, it pretends something is a principle when it isn't. So often we hear one political party or another cloak its positions in rhetoric about democracy or justice when really they're talking about personal enrichment or partisan advantage.

The second problem with consequentialism is that it often works on the false assumption that we can know what the consequences will be. The last great constitutional disaster was Prohibition. The 18th Amendment was supposed to get Americans to stop drinking booze. People made straight-line predictions that if you made hooch illegal, people would stop drinking it. Some did. Many didn't. Go rent "The Untouchables" for the rest of the story.

Proponents of the FMA believe that it will have the straight-line effects they desire: no gay marriage, stronger traditional marriage, no more debate about gay marriage. The opponents of FMA make similar arguments about gay marriage itself, saying that the consequences will be obvious, beneficial and predictable.

I really don't buy any of it.

I think gay marriage is probably a bad idea. But, I admit, my feelings stem partly from a conservative view that holds that all radical new ideas are probably bad ones.

I like "muddling through," as the British say.

If I had my druthers, we'd take this issue very slowly, over a generation or two. It was only in 1973 and 1975 that the American Psychiatric Association and the American Psychological Association, respectively, removed homosexuality from their lists of mental disorders. That was the right decision, but it does illustrate how profoundly young a "mainstream" gay culture is.

If it is inevitable that civil marriage be redefined to include same-sex couples, I think that inevitability shouldn't be rushed. Why not first solve the practical, easier problems stable gay couples face - partnership benefits, hospital visitation, etc. - through some form of civil contracts?

And if eventually the stability and monogamy of homosexual relationships are so self-evident that it becomes obvious to a wide majority of Americans that gay marriage is a worthwhile next step, we can deal with that. As Edmund Burke, the father of modern conservatism, noted, "Example is the school of mankind, and they will learn at no other."

If, in the meantime, justice delayed equals justice denied to a handful of couples who want marriage now, well, I'm sorry. That's the way life works sometimes. As Burke also said, sometimes we "must bear with infirmities until they fester into crimes."

But no one's taking my advice. So, we have the FMA barreling down the tracks. The FMA would ban gay marriage "or the legal incidents thereof" - which many take to mean civil unions as well - in all 50 states for all time.

That may sound like a good idea if you're against gay marriage, civil unions and all the rest. But to me it sounds an awful lot like a replay of Prohibition. I can't tell you what the unforeseeable consequences of such an amendment are because, duh, they're unforeseeable. But what I can predict with almost mathematical certitude is that the FMA will not make this issue go away. Rather, it will more likely serve to radicalize the anti-FMA forces in much the same way Roe vs. Wade radicalized anti-abortion forces.

Historically, the way we cut these knots is by throwing the issue to the lowest, most local level possible. If South Carolina wants to ban alcohol, fine. But don't tell New York they have to, too. This way we get a multiplicity of examples to follow and debate, rather than a monarchal decree from above.

If Massachusetts really wants something called "gay marriage," I may disagree with the decision, but it's their decision (note: So far most Bay State voters are against it). And, while I'd probably be in favor of an amendment codifying the principle of the Defense of Marriage Act - which allows states to refuse to recognize the gay marriages of other states - the FMA goes much further than that.

You can't favor federalism for only good ideas or ideas you like. Experimentation means allowing local communities to make mistakes.

So, I guess I'm against the Federal Marriage Amendment.