TCS Daily

Gay Marriage and Ambivalent Conservatives

By Nick Schulz - February 20, 2004 12:00 AM

A curious thing happens when talking to younger conservatives about gay marriage. While many of them think same-sex marriage is in some ways an incoherent notion, I haven't come across any who think that gay marriage will not at some point be permitted. What's more, many of them are not particularly distraught at the prospect.

It's true that some of them who are vigorously opposed to gay marriage feel that other laws troubling to them -- such as legalized abortion -- have been foisted upon them by activist judges, and so they think gay marriage will prove to be no different. And others opposed to same-sex marriage sense the tide of public opinion is shifting away from them and that, despite what current polls might say, more and more people will not want to deny gay couples the ability to wed. Still others think the institution of marriage has changed so much that, from a legal standpoint, there are no good reasons left to prohibit gays from marrying.

But the libertarian writer Virginia Postrel touched on another dynamic at work, one that captures why a lot of self-described conservatives haven't lost a lot of sleep over the gay marriage debate. On her personal website she recently linked to an Associated Press article that pointed out the following:

"Massachusetts has one of the highest concentrations of gay households in the country at 1.3 percent of the total number of coupled households, according to the 2000 census. In California, 1.4 percent of the coupled households are occupied by same-sex partners. Vermont and New York also registered at 1.3 percent, while in Washington, D.C., the rate is 5.1 percent."

Postrel went on to say that this "helps explain why DC conservatives, including the president, tend to squirm when their base demands condemnation of gay marriage and gays in general: If you work in Washington, you inevitably have gay friends, many of whom are de facto married."

Ambivalent Conservatives

On the subject of gay marriage, many conservatives today are what might be called "ambivalent conservatives." They call themselves conservatives; but they are more comfortable saying that, while they certainly aren't exactly what you would call for gay marriage, they don't have much stomach to be against it, either. As one put it to me the other day: "I guess I don't really care. That's my strongly staked-out position." Jonah Goldberg of National Review captured some of this ambivalence when he recently wrote, "Whether you're for it or against it, many of us just don't want to hear about it anymore."

Lots of younger conservatives think of themselves as tolerant, freedom-loving and possessing metropolitan sensibilities; but they also revere tradition and aren't comfortable with needlessly monkeying around with old institutions. The issue of same-sex marriage sits atop the intersection of these values.

Thus, ambivalent conservatives, while not finding the claims made by gay marriage proponents to be entirely persuasive, also are uncomfortable with the opponents to such marriages fiddling with the Constitution. They are uncomfortable with the proposed Federal Marriage Amendment (FMA), which reads in part:

"Marriage in the United States shall consist only of the union of a man and a woman."

The conservatives advancing this amendment say without it the courts will read into the Constitution a right to gay marriage, so an explicit prohibition is necessary. Ambivalent conservatives may think that's likely, too, but many of them are still uneasy with this kind of amendment, have no interest in supporting it, and feel they are left scrambling for a political position they can articulate and be comfortable with and that reflects their values without compromising core principles.

To many of them, one argument advanced by the non-partisan writer Jonathan Rauch in his forthcoming book "Gay Marriage: Why It Is Good for Gays, Good for Straights and Good for America" is likely to prove attractive. Rauch says that, if an amendment is to be pushed by conservatives, it needn't be the FMA that defines marriage as a union of one man and one woman.

In an email exchange, Rauch explains:

"I don't think any amendment is necessary or desirable. The Defense of Marriage Act (DOMA) is certainly constitutional, and amending the Constitution unnecessarily is a bad idea.

"But I grant that some federal judge might disagree with me and set off a national panic before being clobbered by the U.S. Supreme Court.

"So if the problem is the worry that federal judges will impose Massachusetts's gay marriages on the entire country, the way to take care of that would be to constitutionalize DOMA. The sample wording I give in my book is:

"'Nothing in this Constitution requires any state or the federal government to recognize anything other than the union of one man and one woman as a marriage.'

"That's an ironclad guarantee that the states and federal government can all go their own ways, without any national court mandate.

"This is consistent with federalist principles. It's consistent with three centuries of marriage being in the states' purview. It keeps overweening federal judges out of the picture. (Activist state judges are the states' business, so long as no state can impose its own decision on others.) It prevents the polarization and culture war that nationalizing this debate will spark. It would be a cinch to enact, at least compared with the Federal Marriage Amendment sponsored by Musgrave et al. And it's in tune with what a majority of Americans are telling the pollsters -- namely, that this issue should be left to the states."

It's possible -- probable even -- this approach will appeal to conservatives for whom federalism is a cherished political value. Moreover, this Rauchian effort at a solution might appeal to President Bush, who on the issue of gay marriage has exhibited some of the characteristic tics of an ambivalent conservative. Bush has said he believes marriage is between one man and one woman. But he has also been reluctant to condemn gay marriage forcefully or to embrace a constitutional amendment explicitly banning gay marriage (and that is not because Bush is unaware that his endorsement is coveted by supporters of the amendment).

Asked about the recent events in San Francisco with gays receiving illegal marriage licenses, the President expressed displeasure, but also said, "People need to be involved in this decision. Marriage ought to be defined by the people not by the courts.'' One way to make sure the decision is made by people and not by courts is through the Rauch amendment that leaves the decision with the states. It's a political position a lot of ambivalent conservatives will likely find appealing.


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