Same-sex amendment?

Posted: Jun 06, 2006 7:05 PM
Key figures in the administration have involved themselves in the matter of the amendment to limit marriage to members of complementary sexes. Mrs. Bush was heard to say on television that she hoped the question would not become a "campaign tool." To let this happen, she suggested, would remove it from the moral plane on which it should travel.

Precisely such a plane is where Mrs. Cheney's daughter Mary believes it belongs. She is a lesbian, a fact everywhere acknowledged but here noted with reluctance, because it oughtn't to figure in the discussion. Ms. Cheney's point is that the contemplated amendment is exactly that, a moral ruling given constitutional dress. If it were passed, it would be "writing discrimination into the Constitution, (which is) fundamentally wrong."

Mrs. Bush's appeal, however appealing, is not likely to inform the debate ahead. Almost all public issues tend to be politicized. The rule shouldn't be strictly applied, but it is generally so that liberals, whose party is Democratic, tend to permissive alternatives. In the debate on Prohibition, which was passed with overwhelming popular endorsement in 1917, the anti-liquor forces were associated with that part of America on the warpath against sinful practices. It was a decade before liberals consolidated their position in favor of repeal, as urged by Franklin Delano Roosevelt.

It is an item of minor historical interest that the repeal of the 18th Amendment zipped through the state legislatures faster than any other in constitutional history. But those who wish to make a libertarian point against the amendment currently proposed have got to grope for appropriate language, which doesn't come readily to mind.

Because the point at issue has to do not exclusively with connubial relations, but with the sanctions that are visited by the state on connubial unions. It is one thing for a state to decree that a man cannot have sexual relations with another man -- such an intrusion attempts prohibitions that are blissfully unenforceable. What the Supreme Court ruled in Lawrence v. Texas (2003) was that sodomy is protected under the 14th Amendment. It did not rule that the state of Texas was required to enshrine homosexual unions as "marriages."

The making of civil laws is a political enterprise. States have differed over the years on what it is that is required in order to qualify for a marriage license. The most obvious differences have had to do with age. Others require variable lengths of time between the filing of an application and the issuance of a license. Some have differing health requirements.

It is important to stress the point made by the president in advancing his defense of the marriage amendment. Sure, it has moral implications, but there is more to the amendment than that. What it seeks to do is to guard the right of individual states to devise their own requirements in the matter of marriage. We know that contemporary interpretations of the authority of the courts have had the effect of nullifying state authority in the matter. Already in Massachusetts, the highest state court has ruled that a law defining marriage conflicts with what amounts to state constitutional rights.

It is the point here that in an age of judicial activism, we have in effect the nullification of state laws. Not a single state legislature has passed a same-sex marriage law. But there is no reason to bet that when faced with such a law, the Supreme Court will deny itself the authority to override states that affirm traditional distinctions.

It is a pity that more time is not given to the constitutional question of state vs. federal authority. The reason for this has to do with the tendency of the Supreme Court in past decades to set itself up as a moral tribunal for the entire country. That superordination of the judiciary can't be coped with except by a constitutional asseveration, and the only way to do this is by an amendment.

On the matter of how this will play politically, we have as the major contender, of course, the gay lobby. It is asking individual states to extend to homosexual unions the same accommodations it makes to marriages. That is a direct challenge to traditional assumptions. If a demand were made merely to extend identical protections to gay unions in matters of tax or inheritance, the issue could be negotiated without fearing to step on judicial toes.

As it works out, the Democratic Party will almost certainly associate itself with the opposition to the amendment -- pleading individual "rights." Whether Mr. Bush can succeed in bringing proper attention to the real issues at stake is, unhappily, bound up in the question of the prestige he now has, diminished by matters that do not affect the reasoning of his appeal for a constitutional amendment.