Baseball Crank
Covering the Front and Back Pages of the Newspaper
February 27, 2004
LAW/POLITICS: Over The Edge on Gay Marriage, Part II

Following up on yesterday's argument . . . as I think you can tell, I'm hardly a bitter-ender on the substance of the gay marriage question. I don't necessarily think that the world would spin off its axis if we had gay marriage . . . frankly, I hadn't really thought about "gay rights" issues until maybe my senior year of college, and I've made a real effort since then to take in all sides of the issues. And while I don't have the patience to read as much on these issues as Andrew Sullivan puts out, I do try to read his stuff on this. But what I do take very seriously is the Left's concerted effort to impose radical social changes without ever getting the sanction of democratically elected representatives or explicit authority in the Constitution or statutes, and then turn around and call conservatives the radical ones.

Now, we've got yet another local official threatening to issue marriage licenses to gay couples, this time the mayor of New Paltz, New York (this is what you get for electing a 26-year-old Green Party mayor). As in California, this will suddenly put both the Governor and the state Attorney General in a very awkward position.

Tom Maguire, who's been all over this issue, points us to Ramesh Ponnuru's article on NRO essentially endorsing the same solution that Maguire, I and James Taranto would all prefer: an amendment that would do nothing more than leave exclusively to each state's legislature the question of what kind of marriages or civil unions to approve. Indeed, the WSJ comes out with an editorial today endorsing precisely this position:

Now, even some who support a constitutional remedy wonder about the language. There is debate about whether the amendment's language would bar states from endorsing civil unions, which Mr. Bush says they should be free to do. We think this entire issue should be decided in the states, by the people through their elected legislators. And if the voters want to alter the definition of marriage as a new social consensus develops, that should be their democratic right.

This is a popular position. Indeed, even Sullivan says "I will support a federal constitutional amendment that would solely say that no state is required to recognize a civil marriage from another state," although he contends that we should first wait for the courts to bulldoze all the existing legislation on the matter - at which point, I do question whether he'd argue that it's a "divisive" attempt to "roll back" the facts on the ground . . .

Given that the votes clearly will not be there for a more sweeping amendment - something such noted weak-kneed moderates as Tom DeLay seem to have already appreciated - those pushing for an amendment need to take what they can get. I agree with Taranto that the more modest solution would put John Kerry in even more of a terrible box than he's already in (as opposed to his current position, in which he (1) says that opposing gay marriage is bigoted and divisive and (2) says that he opposes gay marriage), since the GOP could honestly portray its effort as one that preserves the status quo without casting it in stone. Kerry would then be forced to bet his chips on the losing hand of opposing his own position - or face the wrath of the Left within his own party.

Turning briefly to the merits of gay marriage, a few non-comprehensive thoughts:

*As I've noted before, I have no problem with civil unions that essentially formalize a gay couple's ability to pledge themselves to each other and gain those benefits and privileges that are reasonably related to such a relationship, including things like hospital visitation rights and survivorship inheritance rights that don't cost the rest of us anything. The sensible way to do this is by statute, so that the government can sift through all the incidents of marriage and decide which ones can reasonably be applied to this context.

*Probably the major reason for preserving the special and unique status of traditional marriage is its intimate relationship to the bearing, begetting and rearing of children. While radical thinkers have tried to undermine this concept since Plato, nobody's yet come up with a better way. The usual rejoinder to this is that we don't bar heterosexual couples from marrying if they are infertile or don't want children . . . this is a complete red herring. It's not unusual at all for the government to encourage A and not B, where A is more likely to lead to C and C is what the government wants to see happen. When you shift the argument to "which has a more obvious, traditional, natural, longstanding and proven relationship to the raising of children," the answer is pretty obvious.

*As Jonah Goldberg has observed, given that gay unions of any sort are a relatively novel phenomenon, the genuinely conservative approach is to recognize civil unions by statute and adjust things as we go along and learn from experience. On the "slippery slope" arguments . . . well, if you took a snapshot of our culture 20, 30, 40 years ago, it would have been very hard indeed to predict where we are today. I don't really think the burden should be on those of us who prefer more incremental changes to foresee everywhere a radical, permanent, set-in-stone court-imposed rewriting of the definition of marriage might lead us. Leaving this stuff within reach of the polity to change in the future is a far healthier answer and one that mature adults can recognize as consistent with dynamic changes in society.

*Andrew Sullivan, who has argued that opponents of gay marriage are hypocrites for focusing on the one issue where they are presently on the defensive without calling for an accross-the-board change in, say, attitudes toward divorce, shot that argument in the foot yesterday by arguing that the proposed amendment is, in fact, part of such a broader initiative. I never gave much credence to this objection; we take the issues as they arise.

Posted by Baseball Crank at 7:48 AM | Law 2002-04 • | Politics 2004 | Comments (4) | TrackBack (2)
Comments

"*Probably the major reason for preserving the special and unique status of traditional marriage is its intimate relationship to the bearing, begetting and rearing of children."

What's your take on gay couples adopting children?

Posted by: C Giddy at February 27, 2004 11:13 AM

I promised I was going to shut up, but before moving onÖ

Iím also much more concerned about the procedural aspects of our constitutional process, rather than the substantive issues. I care mainly about the Constitution and the democratic process.

So, for the record, not that anyone cares Ė Iím fine with the idea of civil unions and equal tax benefits (weíre all taxed too much anyway). Iím opposed to calling gay civil unions ďmarriageĒ Ė I think that term has a special meaning. Any combination of the above, however, I can live with if democratically enacted by federal or state legislatures. It is the imposition of any of them by the courts that Iím fundamentally against.

As for the amendment, I still donít know what itís supposed to say (which is important), but I doubt, and have always doubted, that it could pass. You canít get 75% of Americans to agree what color the sky is right now.

I would love to see a sensible, comprehensive political compromise by all concerned and then have that compromise codified into a bi-partisan constitutional amendment, meeting the main concerns of gays and religious groups, minimizing ambiguity and settling this issue for the foreseeable future. But Iím not holding my breathÖ

Posted by: The Mad Hibernian at February 27, 2004 1:27 PM

So marriages are "special" but civil unions are not?

Posted by: C Giddy at February 27, 2004 3:20 PM

Gay people think the term "marriage" has a special meaning, too. The disagreement is not over whether marriage is special, but whether heterosexual relationships are somehow more special than homosexual relationships. If that's what you think, then you should be able to rationalize that point of view by completing this sentence: "Gays and lesbians deserve second class citizenship because..."

Compromise can be a wonderful thing. But when right and wrong are clear, compromise may not be enough.

Posted by: withrow at March 2, 2004 12:21 PM
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