TCS Daily

On Gay Marriage, A Way Forward

By Michael Horowitz - February 27, 2004 12:00 AM

The President announced this week that he will support a constitutional amendment to deal with the mushrooming marriage crisis triggered by recent decisions of the Massachusetts Supreme Court. While indicating that the amendment he will support will "defin[e] and protect...marriage as a union of man and woman as husband and wife," the President's major focus was on the need to protect democratic processes from judicial overreach. More importantly, he carefully and deliberately indicated that he has not yet reached a decision about the wording of the amendment he will support.

The President has two different ways open to him to deal with the matter.

The first approach, best described as the anti-gay marriage strategy, will please some conservatives and evangelicals, but will go nowhere and will let Sen. John Kerry off the hook. Unfortunately, the President appears to have cast his lot with this approach.

The other approach, best described as the pro-democracy approach, is not yet seriously on the table and is thus still (modestly) open for dramatic Presidential introduction. It will reverse the Massachusetts decision, receive reluctant support from most conservatives and evangelicals, can receive surprising support from gays, libertarians and others favoring gay marriage, and can change the terms of the current debate to the President's advantage. It will create serious political dilemmas for the President's opponents. Its prospects for success could be real.

An anti-gay marriage amendment will focus debate on the propriety of gay marriage; its alternative will put the focus on how decisions regarding gay marriage should be made. The former would use the United States Constitution to forever bar the American people from deciding some questions regarding non-heterosexual unions, while the latter would "simply" bar judges from substituting themselves in such matters for legislative and referendum processes.

An amendment focusing on democratic governance rather than the illegitimacy of gay marriage, would reads as follows:

Except for distinctions based on race, color or religion, the establishment of civil marriage in all of its forms, and the benefits thereof, shall in each state be solely defined by the legislature or citizens thereof, and shall have such legal force in the remaining states as the legislatures or citizens of such states shall determine.

Such language would allow states to establish marriage relationships on any terms they chose, but only if democratic processes were used. It would make enacted marriage laws binding only in other states if, through democratic processes, they chose to be so bound. It would allow courts to invalidate attempts of rogue mayors and county registrars to unilaterally license gay marriages. Finally, it would fully preserve the Constitution's bedrock civil rights role by retaining the freedom of the courts to strike down such legislation as so-called anti-miscegenation statutes.

Such an amendment would capture for the President the high ground of trusting people to decide a matter of central importance to them. It would make it hard to paint him as divisive or anti-gay. It would help shift the balance within the American conservative community towards morally confident advocates willing to reach out to others and capable of shattering myths about who they are and what they stand for. It would create for many elites the man-bites-dog story that the President does not seek to impose his religious, moral or cultural views on those who disagree with him, but rather trusts the people to reach the right decisions. It would offer a platform from which the Vice President and Mrs. Bush could comfortably and fully engage in the debate. It could gain support from libertarians and pro-federalists. It would bring Roe v. Wade into sharper focus because its central premise -- the need to substitute democratic decision-making for judicial fiat -- is precisely what is at stake in the abortion debate. It would turn on its head the thundering claims of critics like Senator Kennedy that the President seeks to use the Constitution to reduce rather than expand rights. It would sharpen the debate over Senate confirmation of such superb judges as Caroline Kuhl, Janice Brown and Patricia Owens, against whom stonewalling confirmation tactics have to date largely succeeded. It will be principled and strategic in character.

Critically for the President, a pro-democracy approach would also make irrelevant the self-serving claims of Senator John Kerry and others who oppose anti-gay marriage amendments while "personally" opposing gay marriage. Putting a pro-democracy amendment on the table would compel Senator Kerry to deal with the central question: whether the Massachusetts Supreme Court or any other court should be free to foreclose democratic debate on the character of marriage in their states and, to a significant degree, for all Americans.

Sacrificing these advantages for inclusion of "marriage is between a man and a woman" amendment language will, as is already evident, cost the President dearly -- even though his proposed amendment would also give gay couples all rights of marriage save for the ability to use the M-word to label their relationships. Such a rhetorical gain seems hardly worth jeopardizing the outcome of a critical national debate, risking negative anti-gay caricature, allowing John Kerry to duck the central issue of the debate and keeping the Massachusetts Supreme Court judges in business. And any such gain would be wildly hypothetical as well, for no state legislature is today even remotely prepared to legislate gay marriages without the gun-to-the-head pressures from state courts that a pro-democracy amendment would remove. For this reason, the sole operational effect of any "marriage is between a man and woman" provision would be to protect heterosexual marriage from the possibility that, many years from now, some state legislature might wish to re-label the civil unions that other provisions of the Musgrave amendment will immediately authorize.

An independent concern should, even at this late date, move the President towards a full trust-the-people approach: the need to succeed and prevail.

In an era of sharp partisanship, with both parties at near-equal strength, any anti-gay marriage amendment may not even be able to clear the jurisdictional Congressional committees. Such an outcome would rightly be treated as a major leadership failure by a President unable to even get a floor debate on a major issue in a Congress his party controls. As, to a lesser but significant degree, would be the increasingly likely overwhelming defeat of an anti-gay marriage amendment on the floor of either house.

Conservatives increasingly understand the "less is more" principle of public policy engagement, by which the core evil sought to be eliminated isn't always made the focus of their efforts to the exclusion of others. They further understand that, with effort, they can lead major bipartisan initiatives without sacrificing their core principles -- that beleaguered us v. them struggles against cultural and religious moderates and liberals need not always be foreordained.

Early proponents of the partial-birth abortion initiative were bitterly condemned as compromisers willing to settle for the "not even a slice of the loaf" reform that would "inevitably" become the right to life movement's final stopping point. Those critics have been proven wrong, as debate and passage of the partial-birth abortion ban has split and dispirited the pro-abortion movement, generated a major shift in American public opinion on abortion and caused millions of undecided Americans to take more guarded views of its legitimacy. Similarly, the argument made by some conservatives that the International Religious Freedom Act's strong focus on hardcore persecution implicitly sanctioned religious discrimination is now seen as having been badly mistaken. Utopian critics of the Act failed to predict that its passage would cause Americans to powerfully identify with millions of believers who were being tortured and murdered for their faiths, marginalize anti-faith bigots who opposed any effort to make religious freedom a core U.S. foreign policy component and thus more fully engage the American people in combating both religious persecution and discrimination.

Likewise with a trust-the-people, pro-democratic process amendment. Because Americans will more passionately contest their exclusion from decisions regarding marriage, an amendment singularly focused on the Massachusetts Supreme Court's one-vote majority decision will more powerfully shape public opinion on gay marriage than would a badly losing effort to ban it.

Conservatives wishing to reach Americans who either support gay marriage, or those who oppose it but equally oppose campaigns even implicitly directed against gays, should be on the side of open channels of debate that offer gay marriage proponents a fair opportunity to persuade others of their views. By so doing, conservatives will more easily persuade the country that they should not be denied the right to democratic recourse by runaway courts. A pro-democracy amendment will focus America on the arrogant finding of four of seven Massachusetts Supreme Court judges that only bigots could disagree with their views on gay marriage, that there is "no rational basis" for any conclusion on the subject but theirs -- a position likely to find little support with voters who rightly believe that they and their elected representatives should have something to say about the matter.

The President can seize moral and political high ground by supporting a pro-democracy amendment and simultaneously expressing both his strong belief in traditional heterosexual marriage and his respect for those who disagree with him. In doing so, he would be joined by religious leaders who share his views and by gay marriage supporters who do not, with both expressing support for democratic governance as the right way to deal with the issue. Such an event may alienate some conservatives for its seeming "openness" to the prospect of an outcome they abhor, although others will see it as the fairest means of dealing with the issue, and still others will understand it to be the only feasible means of reining in courts poised to impose it on otherwise unwilling Americans. (The problem with conservatives is that the President's announced support for some form of "marriage is between a man and a woman" language is that many conservatives will see subsequent support for a pro-democracy approach as a retreat from a previously announced promise.) Supporters of gay marriage who support a pro-democracy amendment will take even more heat for endorsing the President's moral legitimacy on the issue and for removing the only presently realistic means of achieving gay marriage, but such principled advocates are there to be found if the President seeks them out.

Mrs. Bush's recent comments at a Santa Monica press conference make her views of the issue sensibly clear. Describing gay marriage as a "very, very shocking issue for some people," she went on to say:

It's an issue that people want to talk about and not want the Massachusetts Supreme Court, or the mayor of San Francisco to make their choice for them. I know that's what the president thinks.

I think people ought to have that opportunity to debate it, to think about it, to see what the American people really want to do about the issue.

Whatever language he proposes, it's clear that the President gets it in all respects. At a recent press conference, he first noted that he "strongly believe[d] that marriage should be defined as between a man and a woman," then expressed his support for "law" that would do so. He then indicated that he was "troubled by activist judges who are defining marriage," and concluded as follows:

I'm watching very carefully. But I'm troubled by what I've seen. People need to be involved with this decision. Marriage ought to be defined by the people, not by the courts.

"By the people, not by the courts" is the unifying federal constitutional standard around which most Americans could, and with Presidential leadership, would rally, with "marriage between a man and a woman" language of the sort the President rightly favors best left for state legislation and state constitutions.

This week's indication that the President intends to support such "marriage is between a man and woman" amendment language has had the predictable effect of dwarfing his more consequential support for full state freedom to legislate all but M-word labeling of gay unions. It is being almost exclusively reported as his endorsement of a campaign against gay marriage.

Not having yet sent specific amendment language to Congress, the President has a limited window to propose a unifying pro-democracy amendment designed to deal with the mushrooming crisis created by the Massachusetts Supreme Court. But his time to do so is very limited, for later-day support of a pro-democracy amendment in the face of diminishing support for the Musgrave amendment is likely to be seen as an act of political expediency rather than principle.

For this reason alone, a quintessentially decent President who harbors not a shred bigotry towards gays will need to rapidly move in the direction of a pro-democracy strategy that will protect him from unfair caricature, lead the country and carry the day.

The author is a senior fellow with the Hudson Institute and Director of the Hudson Institute's Project for Civil Justice Reform and Project for International Religious Liberty.


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