Bush to Back Marriage Amendment
President Bush plans to endorse a constitutional amendment that would define marriage as the union of a man and a woman in response to a Massachusetts court decision requiring legal recognition of gay marriages in that state, key advisers said yesterday.
Bush plans to endorse language introduced by Rep. Marilyn Musgrave (R-Colo.) that backers contend would ban gay marriage but not prevent state legislatures from allowing the kind of civil unions and same-sex partnership arrangements that exist in Vermont and California.
Bush has moved incrementally over seven months toward embracing a ban on gay marriage, and the advisers said he will clarify his position with a public statement shortly.
“We’d like to see Congress take it up, and the president will be supportive,” a top Republican official said. “We would like to see both chambers act sooner rather than later.”
Bush’s move could put cultural issues at the forefront of an election year that had been dominated by economic and national-security issues.
The White House strategy, designed to minimize alienation of moderate voters, calls for emphasizing that Bush is for traditional marriage, not against gay people. Opinion polls have found widely varying support for a constitutional amendment depending on the way the question is phrased, suggesting that voters have ambiguous feelings on the subject.
The rhetoric on this will get ugly. Indeed, it already has. Dahlia Lithwick takes a good premise and then ruins it with bad logic and some name-calling:
Most moderates and swing voters simultaneously accept homosexuality and reject the idea of gay marriage. They generally oppose persecuting homosexual conduct, while they generally support maintaining marriage as a heterosexual-only proposition. (The former numbers dropped significantly last springÃ¢€”a backlash against the Supreme Court decision invalidating Texas’ gay sodomy law.) This is a minefield for the president and one he can easily avoid. There is a principled, moderate resolution to this issue, but he has thus far ignored it in favor of big rhetoric. Commentators from the conservative Andrew Sullivan to the liberal Cass Sunstein have espoused it. But the president has failed to hear it.
The federal Defense of Marriage Act, already exists, signed into law by President Clinton in 1996. One provision defines marriage as male-female only. The other attempts to eviscerate the Constitution’s “full faith and credit” clauseÃ¢€”by giving a state the right to deny the validity of a marriage sanctioned by a sister state. DOMA may well be unconstitutional, and this will likely be tested in the courts in the coming years.
For one thing, there is an established trapdoor to the full faith and credit clause: The courts have long held that no state should be forced to recognize a marriage sanctioned by another state if that marriage offends a deeply held public policy of the second state. States have been permitted to refuse to recognize marriages from states with different policies toward polygamy, miscegenation, or consanguinity for decades. At this point, 39 states have passed mini-state-sized DOMAs that proscribe marriage for gay couples, often elaborately saying that it violates their public policy. This strongly suggests that the public policy exemption would be triggered, and states would be free to choose for themselves whether to sanction gay marriages. At the very least it would make sense for the courts to rule on the constitutionality of DOMA and full faith and credit before amending the Constitution for only the 28th time in history.
I basically agree. Of course, as a practical matter, dodging this issue is impossible for either Bush or Kerry. It’s a hot issue and they’re going to be hounded on it by the press even if the candidates try to avoid it. Not to mention that, if a federal judge overrules DOMA–which strikes me as plainly unconstitutional–then the issue is essentially moot, since it usually takes quite some time to get a Constitutional amendment passed and it strikes me as rather unlikely that we’d de-certify marriages that had been valid for two or three years.
But here’s where Lithwick goes too far:
Does President Bush really want to be remembered as the guy who first used the Constitution to codify bigotry? *** To amend the Constitution before the courts have even ruled on DOMA is to give in to pre-emptive hysteria. It’s a hedge against a hole in an escape hatch. It calls out only one signal: that even one gay marriage in one small state is too many. That’s not statesmanship, and it’s not political policy. It’s bigotry.
No. It isn’t.
I personally buy Sullivan’s rationale on the issue and think that, on balance, allowing gay marriage is not only the right thing to do on general libertarian principles but likely more likely to promote conservative values than the status quo. But to term the desire to defend longstanding cultural and religious norms “bigotry” is not only insulting but counterproductive. Let’s argue this one on the merits. My guess is that there will be a lot more name-calling on the Left than the Right on this one.