Bush to Back Marriage Amendment

WaPo: Bush Plans 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.

Wow.

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 spring—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” clause—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.

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FILED UNDER: Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Paul says:

    I’m getting way to old and out of shape to be going out on limbs but here goes…

    This issue will shape the whole election.

    Forget WMD and Kerry’s deplorable record in the Senate… This is the 10,000 pound elephant.

    There… I’ve done it!

    Paul

    BTW If I am right, Bush wins.

  2. Sam says:

    Polygamy/group marriage is definitely next. The arguments against it never made much sense to me.

  3. Beldar says:

    There will be, and already is, name-calling, rabble-rousing, and demagoguery from both sides on this issue, unfortunately. The emotions it triggers are right up there with the abortion issue in their intensity, or perhaps more intense.

  4. Zygote says:

    I’ve already been dubbed a bigot for my position — which is funny because I’m not sure what it is myself.
    I’ve also been labeled as intolerant, which I’ve come to understand means, “You don’t agree with what I think the world should be like.”

  5. Moe Lane says:

    Call me when somebody with one of “Bush’s key advisors” with a name claims that Bush is going to do this. My credulity for anonymous leaks is at an all-time low.

  6. legion says:

    James, I believe you’re wrong.

    To have an open, wide-scale debate about something controversial (gay marraige, Mac vs. PC, whatever) and then coming out with a particular position… that’s debate. But to try to codify those “longstanding cultural and religious norms” you speak of, without even trying to see if those norms still apply to society – to force those norms on every citizen prior to any debate – _that’s_ bigotry.

    Note, please, that I’m not saying those norms don’t apply; but the simple fact that this debate is raising so much heat means that it has to be addressed seriously and broadly _before_ we start worrying the Constitution, fer cryin’ out loud.

    Lithwick does get rather shrill towards the end, but her point is basically valid – this is not something that should be dealt with by a knee-jerk reaction (either direction). If we don’t address gay marriage in a way the majority of the country can accept, we’ll just have this same problem again in a year or two. And I don’t think Bush (or I, or anyone else for that matter) really knows how the majority of Americans feel about this. That’s why we have to talk about it.

  7. Jalal Abu Jarhead says:

    While I agree that a dialog is essential to identifying the norms, it seems to me that the Mass. Supreme Court decision is a catalyst from the left, and the Constitutional Amendment is a catalyst from the right. If there isn’t something to stimulate the debate, no one’s going to be talking about it. And with a very strong push to get the debate going from one side, a “counterpush” from the opposite end is necessary to prevent being overwhelmed.

    Also, remember that it’s far easier for a state Supreme Court to issue an edict and have it enforced than it is to pass a Constitutional Amendment. The proposed amendment is actually more targeted to discussion than the “pass a law within six months legalizing gay marriage” mandate.

  8. Stephen says:

    I don’t have an opinion on gay marriage, a statement that somebody will be sure to dispute after they read what follows:

    The notion that opposition to gay marriage is a form of bigotry is based on the innate theory. Gay activists have been arguing, essentially, for some time that being gay is precisely the same as being born with black skin. This strategy is a clear attempt to attach gay activist issues to the black civil rights movement.

    I don’t believe the innate theory, and this is a result of 35 years of experience living in the gay dominated communities of San Francisco and New York City. My reasons derive purely from personal experience.

    1. My gay friends drop the innate theory when they’ve tried to seduce me. They tell me that I’m a fool not to turn gay. Gay men are smarter, they say, because they can get all the sex they want without the interference of women, and they do not have to shoulder the burdens of responsibility for women and children. In other words, they tell me that they chose to be gay because it is a more intelligent, more self-serving lifestyle.

    2. Gay co-workers, particularly those entering the workforce directly out of college, have also been telling me for years that I am “stupid” for remaining straight, and that they are “smart” for deciding to be gay. They point out, accurately, the many punishments the quota system metes out to straight men, and the many rewards that same quota system metes out to gay men. Since I work in the world of the arts, I cannot dispute that. In my field, it is positively a negative to be openly straight. I am reminded almost daily by the gay co-workers that I am cutting my own throat by being openly straight. Almost daily, I am told that I would be better off if I’d at least pretend to be gay.

    3. The lesbian feminist movement of the 1990s clearly indicted father abuse and incest as the reason why women do and should become lesbian. The infamous “Vagina Monologues” openly state that women should become lesbians in order to escape from male violence and sexual abuse.

    My personal experience tells me every day that gays themselves do not believe the innate theory.

    This kind of cuts the rug out from under the bigotry argument.

  9. legion says:

    You raise an interesting point, Stephen, but I think I have a valid counter-argument: religion.

    I’m not going to debate the idea of being ‘born gay’, but I do feel safe saying that nobody is ‘born’ to a certain religion. Children are typically raised in the faith of their parents, but plenty of people convert later in life. So ask yourself this: Would it be discriminatory to pass a law saying Baptists (for example) weren’t accorded marriage protection? That couples married in a Baptist church were no longer considered legal couples? Would that be bigotry?

  10. James Joyner says:

    legion,

    Don’t know if it would be bigotry–it would depend on the rationale, I guess–but it would clearly violate the Establishment Clause.

    And some Jews and Catholics would dispute your claim that no one is born into a religion.

  11. Anonymous says:

    Frankly, Stephen, the people you’re talking to sound like they’re yanking your chain for their own ends.

    I think they’re doing a grave disservice to all the gay people who wrestle with their sexuality every day to imply/state what they are to you. I mean, what they’re telling you is that those “gay deprogramming” places are legitimate, and that gay teens kill themselves because being gay is so fun that they can’t bear to switch back when faced with parental and societal rejection. Or else that gay teens, by what they’ve been telling you, can’t possibly exist.

    I don’t blame you for thinking the way you do if that’s what you’ve been surrounded with. I’m frankly angry at the folks who’ve been feeding you that garbage. It’s a damn shame.

  12. Stephen says:

    I don’t think that wrestling with one’s sexuality is limited to gays. We all do.

    If you take a look at the men’s issues websites you will also find that suicide is simply higher among men than women, and that it is a particular problem among men who have had the children taken away from them by the divorce courts.

    Parents have rights and a self-interest, too. When a parent is confronted with a child who professes to be gay, that parent might well be experiencing grief over the loss of potential grandchildren. Why should only the child’s interest be considered?

    I do not think that gay friends and associates have been pulling my chain. They’ve been telling me the truth, a truth they conceal in public forums as a way of bolstering their political claims.

    Lesbian feminist activists throughout the 90s were particularly vocal in their indictment of father-incest and physical abuse as the reason they chose to become gay. Lesbian feminist rallies routinely featured speakers who demanded that women become lesbian as a political act.

    So, on one side, we have the male gay activists claiming that homosexuality is caused by absolutely nothing, and the lesbian feminist activists claiming that homosexuality is caused by the evils of men. And, either side would gladly call you a bigot for disagreeing.

  13. legion says:

    James – that’s something I’m not familiar with beyond the basics, the Establishment Clause. If the anti-gay marriage amendment were ratified, wouldn’t that make parts of the Constitution self-contradicting? How would that be handled in the courts?

    And you’re right about not all religions agreeing with me – my wife is in the process of converting to Judaism, and we had that debate just last week… (“Once you become a Jew, you can stop practicing, but you can never ‘not’ be a Jew” “Huh? Sez who?” “The Jews” “WTF?”)

    And Stephen – While I’ve never been approached quite as overtly as you have, I’ve seen a similar undercurrent in the social circles of some of my more ‘alternative’ friends… There seems (and this is strictly my own observation) to be an intolerance to bisexuality in the gay community that can cause a bit of a backlash like what you’ve described. Because sexual orientation is such a polarizing issue these days (any day?) there seems to be a real ‘us or them’, ‘with us or against us’ vibe in both gay and straight discussions, such that if you ever have sex with a person of gender X, you’re lebeled that orientation forever. I’ve known a number of people, however, who just aren’t that iron-clad in their preferences, and I suspect (again, pure speculation on my part) that these are the people who believe everyone can just ‘be’ gay or straight whenever they want.

  14. James Joyner says:

    legion,

    Essentially, the state can’t discriminate on the basis of religion.

    The purpose of a Constitutional amendment is to change something in the Constitution. Almost all of the amendments contradict something from earlier in the document; the amendment takes precedence to that extent.

    I’m hardly a religious scholar. There is such a thing as a Jewish atheist; there isn’t such a thing as a Baptist atheist.

  15. Jennifer says:

    As some have already stated…As a somewhat conservative person, I am already labeled as an ignorant bigot because I feel that gay/lesbian marraige is wrong. Yet, I have friends that I have been close to for years that are gay. I love them as if they were family, and while I do not agree with their lifestyle, I do accept it and they know that I still love them whether they are gay or straight. I do agree with the biblical view on homosexuality and I disagree with gay marraige, but when will people both straight and gay accept that your sexuality should REMAIN in the bedroom! It’s no ones business whether you are homosexual or heterosexual. Your everyday choices in life are not affected by who you sleep with that night!