Kerry, Edwards May Not Vote on Marriage

AP – Kerry, Edwards May Not Vote on Marriage

When I first saw that headline on Memeorandum, my reaction was that it was an awfully cowardly act–avoiding a vote on the most controversial domestic issue of the day. There’s not really much to the actual story, though:

Democrat John Kerry and his running mate John Edwards may not end up voting on a constitutional amendment to ban gay marriage, a polarizing issue in the presidential campaign. President Bushhas called for the amendment and top Republicans are trying to get one passed in the Senate. But opponents of the measure are trying to block the amendment from ever coming to a direct vote, and the only vote likely to occur now is a procedural one scheduled for Wednesday aimed at forcing the Senate to act on the amendment.

Kerry spokeswoman Stephanie Cutter said Kerry and Edwards would be in the Senate to vote against the amendment if it came up, but they will not be there to vote on the procedural measure. Republicans, who had already conceded they lacked the two-thirds majority — or 67 votes — needed to advance a constitutional amendment, would have to get 60 votes to go to a final vote on the issue itself. On Wednesday, Kerry is scheduled to be in his hometown of Boston preparing for the Democratic National Convention being held there later this month. Edwards, the North Carolina senator, begins his first solo campaign swing since being named to the ticket.

While Kerry and Edwards oppose gay marriage, they argue that it is an issue that should be left to the states to decide. Both senators support civil unions, which would give gay couples all the legal rights of married couples without letting them wed.

It’s not as if they show up to work very often, anyway. And it’s true that their votes won’t matter one way or the other, since there isn’t 67 votes for proclaiming the sky blue in the current Senate. Pejman Yousefzadeh disagrees, arguing that this is tantamount to ducking the issue, since the procedural vote is all there is. Their position on the amendment is actually pretty clear, though, as the next paragraph of the story points out:

While Kerry and Edwards oppose gay marriage, they argue that it is an issue that should be left to the states to decide. Both senators support civil unions, which would give gay couples all the legal rights of married couples without letting them wed.

Now, that’s sort of ducking the issue, since it avoids “full faith and credit” issues and whether state legislatures or activist judges should make the call at the state level. Of course, the Republicans have made the “leave it to the states” argument somewhat plausible since, inexplicably, they have tried to federalize marriage with the Amendment, precluding a very liberal state from recognizing gay marriage, rather than taking the more measured approach of constitutionalizing the “Defense of Marriage Act.” That might even have had a chance of passage.

Andrew Sullivan, writing in TNR, argues that even a limited approach is unnecessary (even if one grants the premises of the opponents of gay marriage), at least at this stage:

No state court could demolish the Defense of Marriage Act (DOMA). Only the U.S. Supreme Court could do such a thing. And no serious legal scholar thinks such a case will arrive for the foreseeable future. Moreover, most legal scholars believe that the legal precedents all allow for non-recognition of out-of-state marriages.

That’s probably true. Of course, any federal district judge could overturn DOMA. Further, any state court judge could overturn their state’s gay marriage ban, as happened in Massachussets. One reason for enacting amendments to the Constitution is to set the overwhelming will of the majority–and only such can amend the Constitution, after all–into stone so that it’s out of reach of the judicial branch.

FILED UNDER: Campaign 2004, 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.