That proposed constitutional amendment

Andrew Sullivan, whose advocacy of gay marriage, Virtually Normal, is one of the few books on politics in the last few years that has immediately and completely altered my view on a particular issue, writes forcefully and poignantly:

The religious fanatics of 9/11 despise the American Constitution exactly because it guarantees equality under the law, freedom of conscience and separation of church and state. The war I have supported is a war, ultimately, in defense of that Constitution. And that is why I am so committed to it.

So you can see, perhaps, why the bid to write anti-gay discrimination into this very Constitution provokes such a strong response from me - and so many other people, gay and straight, and their families. It robs us of something no one in this country should be robbed of - equality and inclusion in the founding document itself. When people tell me that, in weighing the political choices, the war on terror should trump the sanctity of the Constitution, my response is therefore a simple one. The sanctity of the Constitution is what we are fighting for. We're not fighting just to defend ourselves. We are fighting to defend a way of life: pluralism, freedom, equality under the law. You cannot defend the Constitution abroad while undermining it at home. It's a contradiction. And it's a deeply divisive contradiction in a time of great peril.

Unlike Andrew, I didn’t favour Bush in 2000, but I do now, and I share Andrew’s horror and incredulity at the suggestion of a constitutional amendment against gay marriage. I had no expectation that Bush would favour such a measure (and more fool me, for I wrote recently that there was literally no reason for a consistent liberal to wish for the defeat of the President). The issue has for some time been a talisman for conservative activists in much the same way as abortion is: on both issues, the notion that a serious and weighty President (which is what he is) would translate activist sentiments to national policy never occurred to me.

There are many things grievously wrong with the President’s stance, but one stands out. The Constitution disinterestedly embodies principles that apply to the Republic’s citizens; the proposed amendment is not disinterested, but singles out a particular group of citizens under the guise of codifying marriage law. That’s what makes it pernicious: to invoke a term once widely-abused and then widely-mocked, and that ought to be reclaimed, it’s un-American. America is a culturally heterogeneous country with a genius for political settlement provided that judicial fiat does not intervene. A workable settlement of the issue of gay marriage ought to be left to states. In that case, I would be confident that this admirable reform would steadily become entrenched without needlessly inflaming opposition and offending the sensibilities of those who hold strong religious or other objections to same-sex marriage. That seems to me, in the best sense, a conservative policy on same-sex marriage, and one that it would be possible and desirable for the President to espouse.

I am not a conservative but a liberal, and would go further. To be able to marry the person one loves and is loved by seems to me so essential to what it is to live a worthwhile life, that I regard it as a defining issue of liberal principle to press for that right. The best that I can say about President Bush’s sentiments is that they will surely not be acted upon in a second term. But in the meantime they impoverish American public life in a way that is as demeaning as it is mean-spirited.

Comments

[Jimmy Doyle]

Hmmm...I have trouble thinking of Bush's behaviour here as no more a blip in an otherwise impeccable presidency. It's more like one more, particularly vile, case of his pandering to his base.

[Kevin Buckley]

Oliver

I'm not sure Bush wanted this fight at this time, but the actions of the MA Supreme court and the SF mayor have pushed him into it. His announcement emphasises the point that the legislature should make law, not the judiciary.

Roger L Simon - http://rogerlsimon.com/ - has a post on this and I found the comments on his post extremely informative on both sides of the issue.

You may find Orson Scot Card's take on the MA Supreme's decision a little overwrought - http://www.ornery.org/essays/warwatch/2004-02-15-1.html - but it does contain the following paragraphs which may give you pause-

"Supporters of homosexual "marriage" dismiss warnings like mine as the predictable ranting of people who hate progress. But the Massachusetts Supreme Court has made its decision without even a cursory attempt to ascertain the social costs. The judges have taken it on faith that it will do no harm.

You can't add a runway to an airport in America without years of carefully researched environmental impact statements. But you can radically reorder the fundamental social unit of society without political process or serious research. "

Will Bush try and make political capital out of this issue in an election year?

Is the Archbishop of Cantebury a Christian?

(Urm... Is the Pope Polish might have worked better there)

But Bush is a politician and that's what they do. My big concern is that this will turn into another Roe v Wade where instead of the politicians working out a sensible compromise that shifts either way as society changes, (I think this is called democracy), the all or nothing approach to the issue will divide society for another generation

[Chris]

>Hmmm...I have trouble thinking of Bush's behaviour here as no more a blip in an otherwise >impeccable presidency. It's more like one more, particularly vile, case of his pandering to his base.

No, you have trouble thinking. Oliver Kamm is wrong on this issue, in my opinion, but at least he gives evidence of having thought about it.

[Peter Cuthbertson]

Andrew Sullivan writes that Bush’s FMA endorsement contradicts the war on terrorism. It divides us when we need unity. More important, he says that what we are fighting for in the war is the separation of religion and politics, the equality of citizens, freedom of conscience, freedom generally, “the sanctity of the Constitution,” and a “way of life” defined by those things. This amendment goes, he says, against all of the above. Now if I thought that the FMA really was a violation of freedom of conscience and the equality of citizens, I’d be against it—and, more importantly, I’m sure the president would, too, if he believed that. It seems to me that one of the things we are fighting for is the ability of citizens to reach different conclusions about what “freedom of conscience,” “equality,” and the like entail, rather than having them dictated to us--for the right to have a substantial political debate. For democracy, not rule by unelected clerical or judicial councils.

- Kathryn Jean Lopez

[Former Belgian]

The problem is summarized in two words: "judicial activism". The Israeli Supreme Court (on a variety of matters) has the same attitude that it has to blaze trails where legislators and the sheeple are unwilling to go. At least it has the excuse that it is filling a legal vacuum in some instances. (Israel, like the UK, has no written constitution, and the jurisprudence of its common law-based legal system is fairly young.) The Massachusetts judges had no such excuse.

[Poosh]

Andrew Sullivan has lost it - he's gone mad to the point that I'd wager he goes to bed screaming into the night. Read his blog, you won't believe how this marriage thing has driven him wacko.

Why conservatives and many homosexuals oppose gay marriage in the US is a big topic with plenty of arguments to absorb before a reasoned understanding can be achieved. With due respect I think Oliver has made a snap judgment.

[David Duff]

My only excuse for reprinting a comment I left on Ryan's site is laziness! Here goes:

"Andrew Sullivan is, of course, 'parti pris', hence his somewhat hysterical tone -"war", "defile", "sacred", I mean, really!

Homosexuals have never had the 'right' to marriage in any society, ever, and the notion that the Founding Fathers intended them to have such a 'right' is laughable. However, they are now pushing for that 'right' and with the help of a politicised judiciary, they have nearly got it.

But Sullivan should remind himself of the self-evident fact that a huge, and I do mean HUGE, swathe of the population is very opposed to the idea of homosexuals high-jacking the hitherto heterosexual institution of marriage. These people are entitled to have their views reflected in the political process. Why should they just roll over to satisfy the whim of a tiny but vociferous minority?

The clash of opinion is what democracy is supposed to manage, so let the political process work and let us hope that such an important social controversy is settled by politicians who have to face the electorate instead of appointed judges."

With some trepidation, I beg to differ with you on this one, Oliver.

[Jimmy Doyle]

Chris: Nice!

[mike]

I agree with Poosh about Andrew Sullivan having lost it and Oliver having made a snap judgment. In fact, I think Sullivan, as quoted by Oliver, is being quite disingenuous.

I live in Massachusetts - ground zero for this stuff. One reads stories almost daily of gay couples from around the country planning to come here in May to be wed. Why are they all coming here to be married if, as Sullivan might have you believe, this is just a Massachusetts thing? That is because of the very real possibility that the "full faith and credit" clause of the US Constitution will require other states to legally recognize these marriages. Presto! - gay marriage all over the US purely as a result of a 4-3 decision of the Massachusetts Supreme Judicial Court. A very undemocratic result. This is why Bush is taking the stand that he is and why I think an amendment is inevitable.

The real shame is that this will result in a big step backward for gay rights in the US. A big overreach by the gay community.

[John Thacker]

Mr. Kamm-- if you do believe that the issue ought to be left up to the states (as I certainly do), then I think that you should support some form of amendment.

An amendment which prevents states from recognizing gay marriages at all if they want to is clearly wrong. There's no evidence that this is what President Bush is supporting. An amendment which clearly indicates that one state's stance, especially when judicially imposed, should not automatically force other states to legalize gay marriages, would be quite reasonable, however. The "Full Faith and Credit" clause is one of some dispute; not so long ago, the US refused to allow Utah to accede to the Union until it banned polygamous marriages, and the uncertain legal status of that claus is a large reason why.

[Matty]

I think Oliver is entirely correct on this issue. What I admire about America (and what is unique about it) is it's constitutionally-guaranteed secularism and fundamental commitment to it's citizen's happiness and liberty, rather than the rule of religious law.

I was heartened to see the term "Un-American" used so utterly correctly. Attempting to write religious law into the American constitution is scandalous.

[mike]

Matty,

Have you mistaken the US for France? There is no consitutionally-guaranteed secularism over here. As for liberty, how about 4 judges in Massachusetts imposing their will on the entire country? That's liberty? You need to rethink this.

[Hugh Hanson]

Sometimes you intellectuals tie yourselves up in big knots.
It's really very simple:
Marriage is a union between a man and a woman.
Friendship is a bond between people of the same, or opposite sex.
Homosexuality is a sexual union between those of the same sex.
Fortunately in the west we are free to choose any of the above relationships, and the consequences thereof.

[Jeremy]

"To be able to marry the person one loves and is loved by seems to me so essential to what it is to live a worthwhile life, that I regard it as a defining issue of liberal principle to press for that right."

So, if say, a brother & sister loved each other, then you think they should be able to marry? Or how about Mother and son? Father & daughter? Father & son? What if you love both a man & woman? Or two women? Favor of polygamy, too?

[Alasdair Robinson]

I think Andrew Sullivan has lost it as well, although I have never agreed with him on this one issue. As I see it, many pro-gay marriage advocates see marriage as a right, something that society owes to them. Andrew consistently talks about the issue as a "right", the right to marry the person that he/she chooses. If marriage is a right, then yes, being denied marriage to a person of the same sex is a form of discrimination. But who ever said that marriage is a right?

[hello]

Marriage is not a right as many have pointed out; it is a privilege.

But that has nothing whatsoever to do with Bush's stance.

He has made several moves recently that have profoundly, profoundly alienated his core constituency. He has granted asylum to illegal workers currently in the US; he has relaxed (somewhat) his anti-environmental stance; he is not as pro-gun as his Dad was (he has, for example, willing to "trade" the NRA's beloved scrap of the security check for lower taxes; he has upheld the don't ask don't tell policy of the Clinton Administration. And, to make matters worse, he was perceived as giving in to the EU and most notably the UK.

As a result he was facing a potential revolt of his core constituency right in time for the election.

He had to do something to shore up their support. This proposed constitutional amendment--that won't get anywhere is his answer.

[alex]

So, if say, a brother & sister loved each other, then you think they should be able to marry? Or how about Mother and son? Father & daughter? Father & son? What if you love both a man & woman? Or two women? Favor of polygamy, too?

Marriage in these days of contraception and the common occurrence of children out of wedlock has for many people very little to do with the bringing up of offspring and everything to do with making a long term commitment to a loving partner, bringing with it a certain status in the eyes of the wider world and a stability to be able to plan a life together.

That you should equate to giving Homosexuals the right to marry with incest (perhaps you should go and read up on ancient Egypt if you don't know why incest is prohibited?) or polygamy - (by definition to very opposite of making a lifelong commitment to share with the one you love) only shows the tired arguments and motivations of those whose mindsets are still stuck in another age.

[Jim Miller]

I am one of the few people who is genuinely undecided on this issue. About one part, I am not, however. It was absolutely outrageous for four people on a seven member state court to change the marriage laws for an entire nation. There are some peculiarities about the Masschusetts constitution that make it exceptionally difficult to amend, That gives the four member majority great tactical advantages.

The Onion, in a satirical article, had the court abolishing heterosexual marriage. The writers at the Onion meant to strike opponents of gay marriage but hit the arrogant and anti-democratic court. Here's a point that deserves some thought: If one of the four were to retire or die, the court would almost certainly reverse its decision when the Republicna governor put someone less arrogant on the court. There would then be two great reversals of policy -- without a single election, anywhere, even in Massachusetts.

Finally, there are people, decent informed people, who think that gay marriage will make it a little harder to raise children. In this post, I link to an interview with one of them, David Blankenhorn, author of "Fatherless America". Like me, he is undecided on gay marriage, but he would oppose it if it made it harder to raise children, as he thinks it might.

[Shannon]

I think that this is a tough issue, but I do think that Bush was way out of line to come out in support of this amendment. I would favor an amendment leaving it up to the states to decide individually what should be done about gay marriage. This would ensure the political process will work the way it is meant to. But this type of amendment is not needed at the moment, as there is a law on the books - the Defense of Marriage Act - which does just this, and this law has not (as yet) been declared unconstitutional.

But the definition of marriage is not something that the courts should be engaged in. Nor does it belong in an amendment to the Constitution, which is a weighty document meant to provide the most important and supreme law and not codify the current political whims of any one administration or even any one majority of citizens in this country. Citizens find representation in the legislative process, not in the document that is the Constitution. It is for this reason that I oppose the Bush proposal most of all.

[MeTooThen]

Mr. Kamm,

Your analysis is thoughtful and provocative.

Please excuse the long insert from AndrewSullivan.com, but I believe it is worthwhile.

Historically, marriage has never been one of the "public acts, Records, and judicial Proceedings" that the Full Faith and Credit clause mandates are transportable from state to state. If that had been the case, we would never have had a struggle over inter-racial marriage. As soon as one northern state legalized it, it would have been legal in every Southern state. (Civil divorce, ironically, is such an institution. It is the result of a judicial proceeding. Civil marriage, in contrast, is a license.) It has long been established law that the states have a public policy exception to recognizing marriages from other states; and Massachusetts' marriage licenses, to cite the current controversy, are even issued on the condition that they are void elsewhere if unapproved in other states. So the notion that four judges in Massachusetts can impose civil marriage for gays on an entire country is simply mistaken.

There is of course much to this debate, but for those who argue about the judicial fiat of the Massachusetts Supreme Court, on this point Mr. Sullivan is correct.

Furthermore, the comparisons of gay marriage to racial inter-marriage are very well taken indeed.

And as far as marriage being a "privilege" and not a "right," I find this argument to be a non-argument. What is "the pursuit of happiness" a distinctly American ideal, other than an inalienable right? How is marriage any different?

The social arguments against gay marriage can be compelling yes, but to date I am yet to be persuaded that a Constitutional Amendment against gay marriage is either constitutional or warranted.

[Another_Matthew]

Well Oliver, you just proved your intellectual honesty, this is very commendable. If only more people were like you.
I still don't understand your unshakeable and seemingly baseless faith in W's "toughness on terror", but maybe you will be "cured" of this one day, by the same kind of hard self-examination!

[Francois Brutsch]

Unlike Oliver, my approval of Bush on the war against terror still left me doubtful about his ideology or moral stance, so I was less surprised by his endorsement of the amendment. Being myself gay and (contrary to Andrew Sullivan) left-wing, I wouldn’t regard this as a reason not to vote for him if I were American: it’s only inconsequential political posturing, given the hurdle for such an amendment to pass.

If the issue of gay rights is older, the question of the same sex couple was non-existent 25 years ago. It is mostly a by-product of the AIDS crisis, which had the unexpected but positive effect of not only improving gay awareness (rather than provoking a backlash) but also forcing everybody (starting with gay people themselves) to consider the reality and depth of what sexual orientation means to life: hence the new fight for the recognition of the same sex couple. As I state at length on my blog Un swissroll (in French), I favour the European way pioneered by Denmark in 1989 of a specific civil union for same sex couples (soon to be implemented without much trouble in Britain and in Switzerland). Not applying marriage law to both straight and gay couples merely acknowledges the fact that giving everybody the same right for their couple to form a recognised entity doesn't necessarily require a unique solution, overlooking some factual biological differences.

On the American debate, I resent the radical, fundamentalist activism of both sides: the majority of the Court in Massachusetts (not allowing their Legislature to adopt the Vermont solution, identical to Denmark) and the proponents of a federal amendment on a matter for the States (which appears to prohibit not only marriage for gays but same sex civil union as well). What’s wrong with pragmatism and seeking a broad consensus, rather than inflammatory stances? Opposite sex couples have a right to marriage (and yes, it is a right, enshrined in the Human Rights Declaration, not a privilege), same sex couples must have a right to civil union.