Friday, February 27, 2004

FMA Redux

I've said in the past that I favor a Federal Marriage Amendment. I also think that civil unions are OK, and that perhaps our society as a whole was going to eventually, gradually come to this conclusion on its own. The act of the Massachusetts Supreme Court to say that, because the State Constitution didn't define marriage as between a man and a woman implies that other unions are not thereby banned, turned logic on its ear. A quick look in any dictionary defines marriage as simply something between a man and a woman. The Mass. SC took the absence of defining what has been UNIVERSALLY assumed throughout 5000 years of human history and concluded that because it wasn't explicitly defined in state law, any marriage between two consulting adults is legal. Of course, until such time as the Constitution of the State is ammended to state that marriage is exclusively between a man and a woman. This put the onus on those who believe in the traditional definition, the majority according any poll I've seen, to defend this position against a minority's interpretation. This is the kind of thing that those of us who rail against "activist judges" can hold up as "exhibit A" in our argument.

Charles Krauthammer's column in todays Washington Post offers a well reasoned opinion on the matter. He states his concerns with the FMA, but that "activists have forced the issue." He also points out the universally acknowledged flaw of the 1996 Defense of Marriage Act ("not a chance in hell that the Supreme Court will uphold it").

Krauthamme sums up my point in the context of pointing out how Democrats are trying to position this as a wedge issue created by the President for purely political reasons:

"Wedge? Marriage has been around for, oh, 5,000 years. In every society, in every place, in every time it has been defined as an opposite-sex union. Then four robed eminences in Boston decree otherwise. With the stroke of a pen, they radically redefine the most ancient of all social institutions. And then those not quite prepared to accept this undebated, unlegislated, unvoted, unnegotiated revolution are the ones accused of creating a political wedge!"

Regardless of all of this, Krauthammer says he would probably still be against the FMA.

"I welcome the debate on the constitutional amendment because it will shift the locus of this issue from unelected judges to where it belongs: the House and the Senate and the 50 state legislatures. In the end, however, I would probably vote against the amendment because for me the sanctity of the Constitution trumps everything, even marriage. Moreover, I would be loath to see some future democratic consensus in favor of gay marriage (were that to come to pass) blocked by such an amendment.

Nonetheless, that does not render the abusive, ad hominem charges made by the marriage revolutionaries -- that it is their opponents who are divisive and partisan -- any less hypocritical. Gay activists and their judges have every right to revolution. They have every right to make their case. But they deserve to be excoriated when, having thrown their cultural Molotov cocktail and finding that the majority of Americans have the temerity to resist, they cry: Culture war!"

I agree with Krauthammer's characterization of this debate, though I still bristle at "gay marriage" because I believe in the sanctity of marriage because of it's religious, moral and traditional aspects. Spare me the "divorce" argument, too. I believe in the ideal, not in the failings of people who attempt to participate in the institution, just as I believe in the ideal of political liberty, as we are trying to establish in Iraw, even if the attempt to reach that ideal is often filled with missteps and false starts.

My differentiation between marriage and civil union may be a semantical argument, but words do mean things. Marriage, the ideal, has been defined and upheld by a thousand years of Western Civilization. It is one of the central, stabilizing institutions of our nation, and any other civilized nation for that matter. Some institutions and traditions that are valuable to a nation, as defined by the majority of the populace, need to be retained and should not fall prey to deconstruction. Slavery should have and did, marriage as being solely between a man and woman, should not. (An excellent, insightful argument is contained here regarding how "gay marriage" isn't a civil rights argument.)

Predictably, Andrew Sullivan is happy with Krauthammer's "thoughtful piece," but, after quoting Krauthammer's assertion that:

"[B]ecause of the Full Faith and Credit clause of the Constitution (which makes every state accept "the public Acts, Records, and judicial Proceedings of every other State"), gay marriage can be imposed on the entire country by a bare majority of the state supreme court of but one state. This in a country where about 60 percent of the citizenry opposes gay marriage."

Sullivan argues that "[t]his is inaccurate. 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." From here, he goes into a legitimization of his point by attaching the gay marriage cause to the civil rights cause of the past. Sullivan has used this tactic in the past, in fact, it is pretty much his standard argument for not having civil unions because they would be "separate but equal."

However, he seems to correctly point out that:

"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. The text of the cited law states:

Chapter 207: Section 11 Non-residents; marriages contrary to laws of domiciled state

Section 11. No marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this commonwealth in violation hereof shall be null and void.

I take this to mean that gay residents of other states that have laws defining marriage as only between a man and woman cannot be legally married in Massachusetts. I wonder if this has been upheld?

I also wonder if this is applicable to what has gone on in San Francisco? Of course, if California, which believes in man/woman marriage only, can't even uphold it's own marriage laws, how can it be expected to recognize the marriage laws of other states? This is where the flaw in Sullivan's argument seems to lie: he seems to discredit the likelihood that the current laws won't be changed, or "reinterpreted" by "activist judges." Sullivan does address this point:

"Some argue that activist courts these days will over-rule these precedents. But with 38 states explicitly saying they won't recognize such marriages; with the Defense of Marriage Act backing that up; the likelihood is minimal."

I disagree. The DMA has no teeth, as pointed out by Krauthammer. (Interestingly, William F. Buckley thinks it can still be used effectively, if only as a temporary stopgap, while an FMA gets passed.) Also, regardless of the DMA, as David Frum has pointed out today (with several questions for Sullivan) the questions related to the legality of marriage across state lines need to be answered. Frum says he asks "these questions to drive home this point: Americans may live in states, but they conduct their financial and legal lives in a united country bound by interstate institutions."

One of the irritating aspects of Sullivan's argument is how he continues to want to have his cake and eat it too. He's happy that judges in Mass. "interpreted" a long standing assumption, but then tries to "reassure" those that oppose a redefinition of marriage that such "interpretations" of law won't be applied in the future? Does he expect us to think that liberal judges won't redefine laws to reflect their mindset? What's keeping the Mass. Supreme Court from changing the above clauses to say that they would consider the reverse to be true?

Sullivan talks of how 38 states ban marriage, but revels in the "civil disobedience" that gay couples, many presumably from those same states, are participating in as they rush to San Francisco to get married. Why? By his own argument, these marriages are presumably invalid. If they have no legal ground to stand on, why are so many rushing to do this? Could it be that many homosexuals are getting "married" because of the symbolic nature of the act? Or do they actually expect that one day their "marriage" in California will be recognized as legal throughout the United States? If this latter is the case, why should they think so? Is Sullivan really trying to convince us that homosexuals will be happy if their definition of marriage is considered law in, at the most, only 12 states? Somehow, I don't think that's the case.

Back to Frum:

"If a couple gets married in Massachusetts and that marriage goes truly unrecognized by any entity outside the state – well then the Massachusetts wedding ceremony is just a form of words, as meaningless as the illegal weddings now being performed in San Francisco. If you’re not married outside Massachusetts, then you are not really married inside Massachusetts either.

Somehow I cannot imagine Andrew and those who think like him reconciling themselves to that outcome. I suspect that 'letting the states decide' will over time gradually evolve into a demand to allow the most liberal states to impose their social values on the others through the mechanism of a million petty lawsuits on a thousand different issues. That is why it is necessary and proper to settle this issue on a national basis. And since the proponents of same-sex marriage have chosen 2004 as the year in which to bring matters to a head, they have no fair complaint if the opponents of same-sex marriage choose (sic) make their reply in that same year."

The fact of the matter is, the FMA is a "preemptive" strike by those suspicious of a larger agenda against the traditional institution of marriage. (As an aside, the link inserted in "preemptive" is to V.D. Hanson's latest piece, which concerns how the word "preemption" has devolved into a political slur.) Sullivan's view is that "the religious right amendment is both extreme - in that it bans any state from granting civil marriage rights to gays - and premature - in that the need for it on purely federalist grounds hasn't been in any way proven." He is correct that the issue has not yet become a federal issue and hasn't been brought before the Supreme Court. Yet, his belief that the Supreme Court would continue to interpret the Full Faith and Credit clause to read that marriage isn't one of the "public acts, Records, and judicial Proceedings" that are transportable from state to state is an excercise in feigned ignorance.

Despite his altruistic legitimizations, Sullivan agrees with judicial activism as long as such activism moves in a direction he favors and he opposes it when it doesn't. Likewise, the same can be said for those on the "religious right." Yet, somehow, according to Sullivan, their agenda is less pure than his own, presumably because they are bigots or homophobes. With an FMA in place, one with specific language stating that marriage is defined as being between a man and a woman, the Supreme Court would have no wiggle room to "interpret" the Constitution in a way that would be "favorable" to either idealogical side. Specifically, the Full Faith and Credit clause would be taken off the table and the SCOTUS would be faced with a simple, concise definition of marriage in the Constitution, one they would be hard-pressed to "interpret."

The only mischief that could then be done would be for them to "interpret" what it means to be a "man" or "woman." But as the Massachusett's Supreme Court has shown, perhaps I shouldn't be so sure in assuming that the basic biological truth of what makes one a man or woman need not be codified in law. Most assumed marriage was between a man and a woman and didn't feel it needed to be explicitly defined. The Mass. Supreme Court took a lack of definition and in a fine bit of relativistic philosophy determined that no definition meant that any definition could be applied. I hope that the absence of a definition of "man" and "woman" doesn't cause similar legal innanities in the future. But I won't be surprised.

Peggy Noonan, in her latest column, says that:

"America is now a country--it was not always--in which people feel free to hold whatever private views on all human groups and behaviors while bowing to the moral necessity to show respect and regard for all groups that are different, in whatever ways. We have gone beyond tolerance in America; we have arrived at affection and sympathy and mutual respect."

I believe that is where I am. Thus far, the advocates for gay marriage have certainly indicated that they expect to receive such sympathetic treatment, and they should. I only wish that they would show the same "affection, sympathy and mutual respect" for those who desire to uphold a traditional definition of marriage.

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