EDITORIAL washingtonblade.com
A real marriage debate
The Senate debate on gay marriage was almost substance-free, but behind the slogans, the real issue is there waiting.
By CHRIS CRAIN
Jun. 08, 2006
THE UNITED STATES Senate considers itself the world’s most important deliberative body, but you wouldn’t know it from the debate this week on a constitutional amendment banning gays from marrying.
President Bush was right about one thing. The issue is one of “great significance,” as he acknowledged Monday, about which “opinions are strong and emotions run deep.”
Whether because of those emotions or the depressing state of political discourse generally these days, the real issues got precious little attention in two days of Senate debate and even less from mainstream media coverage.
Instead, encouraged by Democrats and their gay activist allies, the focus was predictably on the horserace, and whether the amendment was a really diversionary tactic designed to shore up the conservative base in time for the fall elections.
Undoubtedly true, but beside the point. The Senate was debating our future and that of our relationships and families, and yet we were almost entirely missing from the discussion.
It goes without saying that there are no openly gay senators, so only heterosexuals plotted our destiny. And of 100 senators only two — Democrats Edward Kennedy of Massachusetts and Russ Feingold of Wisconsin — actually spoke out in favor of our freedom to marry.
So instead of a debate on the real issues, we were treated to substance-free sloganeering — “activist judges!” vs. “diversionary tactic!” — that makes the abortion debate — “baby killers!” vs. “it’s a woman’s body!” — look almost thoughtful.
WHAT WOULD A real debate on the Marriage Protection Amendment have sounded like?
First of all, our senators would have talked about the amendment itself and whether it actually prevents “marriage from being redefined by activist judges,” as its backers from the president on down keep insisting.
If those advocating “judicial restraint” only wanted to ensure that “activist judges” did not force states to marry gay couples, then they would have drafted a very different amendment; one that resembles the second sentence of the one proposed.
It would say something like: “Neither this Constitution, nor the constitution of any state or federal law, shall be construed to require that marital status be conferred upon any relationship other than the union of a man and a woman.”
An amendment like that would block federal and state judges from striking down hetero-only marriage laws, while allowing democratically elected state legislatures — “the people!” — to enact laws allowing gays to marry.
But the so-called Marriage Protection Amendment goes much further than that. Its first sentence sets a national standard: “Marriage in the United States shall consist only of the union of a man and a woman.” So “the people” of one state cannot enact a law allowing gays to marry, so long as three-fourths of the other states ratify an amendment setting a national hetero-only standard.
So much for talk about “activist judges.” It’s just a lie, or more charitably a ruse, intended by the president and his conservative base to short-circuit the very “democratic debate” by “the people” they claim the judges want to steal.
A REAL DEBATE on gay marriage would also involve someone actually standing up for those “activist judges,” who in many states were elected themselves and in all others appointed by elected officials — many of whom are Republicans.
Those judges swore an oath to protect and defend the federal and state constitutions, and in decisions on gay marriage they have fulfilled their historical role, protecting equal rights from a discriminatory law “democratically enacted” by “the people.”
In every state where the highest court has ruled on gay marriage in the last couple of decades — from sea (Hawaii and Alaska) to shining sea (Vermont and Massachusetts) — justices have ruled that laws that allow only opposite-sex couples to marry violate the constitutional guarantee of equal protection.
President Bush has never uttered a word about the substance of those rulings, and pitifully enough, our defenders have been cowered away from doing so as well.
The justices in these states considered every argument offered up to justify marriage laws that segregate the rights, benefits and protections of marriage to opposite-sex couples only. And in every case, a majority has concluded that those justifications lack any rational basis — the easiest legal test for a law to pass.
In so ruling, these judges weren’t “legislating from the bench” or, as conservatives accuse them in Roe vs. Wade, creating new rights out of whole cloth. They were protecting equal rights, just as judges before them did for African Americans, women and other groups facing irrational discrimination.
THE DEBATE OVER gay marriage is most frustrating, however, because it’s so rare that the advocates on either side ever get down to talking about marriage itself.
President Bush came close on Monday. “For ages, in every culture, human beings have understood that marriage is critical to the well-being of families,” he said. “And because families pass along values and shape character, marriage is also critical to the health of society. Our policies should aim to strengthen families, not undermine them.”
Exactly! Gay couples wishing to marry could not agree more! We seek for our relationships and our families those same protections and values that the president cherishes. Why would anyone who believes in the power of those values wish for gay couples anything different?
The president has an answer, and at its heart is the core of the real issue, though it is almost never discussed.
“Changing the definition of marriage would undermine the family structure,” said the president, though he really meant “the heterosexual family structure.”
The answer our defenders offer to that argument is typically along these lines offered tongue in cheek by Senator Feingold on Wednesday.
“All over the country,” he said, “married heterosexual couples are shaking their heads and wondering how exactly the prospect of gay marriage threatens the health of their marriages.”
He’s right, as far as he goes. But the real reason most conservatives think “changing the definition of marriage would undermine the family structure” is because gay marriage goes against their religious beliefs.
They hint at that real motive by calling marriage a “sacred institution” while shying away from saying more because that so obviously runs afoul of the First Amendment prohibition against an official state religion. Still, our defenders ought to call them out on it.
In reality, opening up civil marriage to gay couples will not force any church, synagogue or mosque to marry gay couples.
But back to the president’s words. More thoughtful gay marriage opponents have openly worried that, with heterosexual marriage in a shambles and divorce rates so high, it’s too risky right now for social experimentation that might further weaken the institution.
We should acknowledge that it’s difficult to know the impact of allowing gays to marry, just as it was difficult to know the impact of allowing interracial couples to marry or the impact on public education of desegregation.
But back then as now, those judges were doing what the constitutions required when “the people” would not.
© 2006 The Washington Blade A Window Media Publication
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