THE GAY ANGLE

As predicted, Andrew Sullivan was less than happy with the speech last night. Enough so that he will take a second look at the Democrats. For a man whose primary motivation in life is the state’s recognition of homosexual marriage, that’s a reasonable position. Indeed, I’m confused why he’s a Republican to begin with. But this explanation is just baffling:

I was also struck by how hard right the president was on social policy. $23 million for drug-testing children in schools? A tirade against steroids? (I’m sure Tom Brady was thrilled by that camera shot.) More public money for religious groups? Abstinence only for prevention of STDs? Whatever else this president is, he is no believer in individuals’ running their own lives without government regulation, control or aid. If you’re a fiscal conservative or a social liberal, this was a speech that succeeded in making you take a second look at the Democrats. I sure am.

Aside from whether calmly noting that athletes are role models and that cheating sets a bad example constitutes a “tirade,” what’s new here? Sully is an incredibly intelligent fellow. How is it that he missed until now that George W. Bush is a deeply religious man? That he’s passionate about getting people addicted to drugs some help? I can take or leave some of these policies, since I’m decidedly less religious and more libertarian than Bush; but I don’t blame Bush for being Bush.

In the previous post, dealing exclusively with the president’s discussion of gay marriage, Sully fisks the passage line-by-line and is outraged that it is rather unclear.

Activist judges, however, have begun redefining marriage by court order, without regard for the will of the people and their elected representatives. On an issue of such great consequence, the people’s voice must be heard. If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process.
What constitutional process? A State constitutional amendment? A federal constitutional amendment? The constitutional attempt to remove or elect judges? Again, who knows? And what would the president’s position be if a state’s legislature passed equal marriage rights? There’s a majority in Massachusetts in the polls on such a matter. California has just passed a marriage-in-all-but-name civil union. Would he support a constitutional process to thwart the people’s will as well? Again: who knows?

Steve Bainbridge notes that several bloggers have jumped on that passage but argues that it was actually “quite clever” in its subtlety:

The move Bush makes here is to begin shifting the terms of the debate from outcome to process. Yes, he’s still focusing too much on whether the law should recognize gay marriage, but at least he has begun to shift attention to the real question, which is “who decides”? The people’s elected representatives or the imperial judiciary?

***

Whatever happens with the legal institution of marriage, however, ought to happen as a result of democratic processes rather than by judicial fiat. The founders of our republic set up a carefully nuanced set of checks and balances, but the last couple of generations of Americans have allowed nine unelected old men and women to seize control of a vast array of deeply contentionous social and cultural issues of national import knowing that they are immune from being held accountable for their decisions. Our judges now use the law to impose elite opinion about how society should be ordered regardless of the democratic will. We have become courtroom spectators rather than participants in the democratic process. It is as the famed First Things symposium put it, The End of Democracy.

Exactly right. The issue is a very touchy one and, frankly, a moving target. In most of rural America, and certainly the South, there is strong opposition to gay marriage. But there is also a growing sense that homosexuality isn’t a “choice” but rather an inherent characteristic and an increased tolerance for it as a lifestyle.

A constitutional amendment to prevent gay marriage is a red herring, much like the amendments to overturn Roe v. Wade or allow prayer in school that have been bandied about for twenty years or more. Amending the Constitution is, by design, incredibly difficult–a 2/3 vote in both Houses of Congress and then approval by the legislatures of 3/4 of the states being the most common method. I guarantee you that more than one third of the Senate and 1/4 of the state legislatures would oppose any such amendment.

That said, the country isn’t ready for gay marriage yet. It’s not unreasonable that people are concerned that, if a particularly “open” state institutionalizes it, gay marriage will become the default norm because of the Full Faith and Credit Clause. It’s also perfectly valid for people to not want difficult social changes forced on them by federal judges. My guess is that, inside twenty years, gay marriage will be a reality and we’ll adjust to it.

FILED UNDER: Campaign 2004
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. Brad S says:

    James,

    I’ve been making the same points to people over the last couple of months (WRT a Constitutional Amendment banning gay marriage). However, as far as gay marriage being a reality in 20 years, don’t be so sure. One of the big reasons why a majority of Americans are now polled as being ANTI-abortion is because a bunch of (as described by the elite progressive types) hayseed-hick-white-trailer-trash, a bunch of blue-haired-old-ladies-in-tennis-shoes, and a bunch of shyster-fraud preachers managed to tug at a nation’s heart-strings. If the elite progressive types refuse to learn the abortion lesson and start putting down the aforementioned again, they’ll start to wonder again why they are not getting anywhere.

  2. craig henry says:

    The Defense of Marriage Act passed 85-14 so i’m not certain that there would be 34 votes against the amendment. The key battle will be defining the meaning of the amendment: is it a hateful slap at gay americans or is it the only vehicle to stop social engineering judges from undermining our republic.

  3. James,

    What’s to get “ready” for? And what makes equal marriage more “right” in 20 years as opposed to now?

    I know that’s the usual thing to say, but by that logic, you could say the country is “not ready” for a Black president. I think that’s garbage. What that argument really says is that the country is still too backwards to realize that a Black president is an option. It’s saying that the country is too bigoted for it. I’m not accusing you of that. I read you enough to know better.

    But it might indeed be true of people in this country. Unfortunate – for both gay people and black people.

    Equality is not something to “get ready” for. It’s something that just “is” and the only reason it’s not here is outright bigotry.

  4. James Joyner says:

    Michael,

    I think there are meaningful distinctions between reaction based on skin color versus those based on lifestyle. That aside, society gets to decide what it’s ready for. Marriage is nothing more than a society according its legitimacy to a union.

    Are most people in the country uncomfortable with the idea of gay sex, let alone gay marriage? I would say so. Is that a form of bigotry? I suppose. But we set all manner of parameters on marriage–age and current marital status being the two most obvious.

    Our political culture is shaped by our Christian heritage. There’s little doubt that 2000-year-old religious creeds are anti-homosexual. But we gradually come to ignore biblical teachings over time. People have only been dealing with this one for 30 years at most. It takes time. Indeed, it’s rather remarkable how far we’ve moved in just the last decade.

  5. Janis Gore says:

    Sullivan is overboard on this issue. No compromise at all. I’m beginning to think he wants a crashing big wedding in St. Patrick’s, or someplace comparable.

  6. I think there are meaningful distinctions between reaction based on skin color versus those based on lifestyle.

    There’s the crux. People still think it’s a lifestyle when, in fact, it’s a life.

    Living in Aspen in your chalet, sipping bubbly after a day of skiing – that’s a lifestyle. It’s something you choose to do.

    Being gay is not a lifestyle.

  7. James Joyner says:

    Michael,

    I don’t disagree. But a large number of people believe passionately, based on their religious upbringing, that sodomy–and, indeed, heterosexual sex outside of marriage–is immoral.

  8. Dave says:

    The basic position of folks in whatever part of the various overlapping spectra I’m in, is that the preference is not a lifestyle, but the act – and especially the ’embrace’ of repeating the act willfully – IS a lifestyle.

    To flip the coin, heterosexual preference isn’t a lifestyle, but a heterosexual sex life is.

    That’s the distinction that I, at least, draw. And it frustrates me immensely when people insist on conflating the two.

  9. James Joyner says:

    Jon,

    I believe in an independent judiciary that enforces the Constitution as written and applies the laws as written. The Constitution was ratified in 1789. It is now 2004. During that 215 year interval, no court has suggested that the document enshrined homosexual union as a fundamental right. This is, therefore, a matter for the people to decide.

  10. Anonymous says:

    James Joyner:

    I believe in an independent judiciary that enforces the Constitution as written and applies the laws as written. The Constitution was ratified in 1789. It is now 2004. During that 215 year interval, no court has suggested that the document enshrined homosexual union as a fundamental right. This is, therefore, a matter for the people to decide.

    Huh? That’s true of ANY constitutional right until a court first announces that right. The courts have announced literally HUNDREDS of constitutional rights over the past 215 years that were not recognized when the document was ratified. You may believe that the Constitution protects only those rights explicitly enumerated or announced at the time of ratification, but I know of no legal scholar–not even the most conservative, like Scalia or Bork–who would agree with that truly radical interpretation.

  11. James Joyner says:

    Most of those at least ostensibly derived from the Consitution itself or from Amendments, notably the 14th. The incorporation doctrine, enunciated in the 1920s, started most of that.

    But I disagree with the right of the court to make up new ones, like the right to privacy, which it discovered literally hiding in the shadows in 1965.

  12. James Joyner says:

    I’d argue that terms of art should be interpreted as intended by the Framers. If the judiciary literally has the power to write whatever they want into the Constitution then, 1) we don’t have a Constitution but a sitting constitutional convention and 2) I’d prefer that the people’s elected representatives be entrusted with it.

  13. James Joyner says:

    constitutional ban on cruel and unusual punishment forbids only those forms of punishment that were considered cruel and unusual by the Framers

    But I’d argue that if it was permissible in 1789, it’s still permissible.

    And, of course, Article III doesn’t give judges the power of judicial review.

  14. Bush speaks of unelected folks “forcing their arbitrary will upon the people”. John Ashcroft, as Missouri AG, was a firm proponent of “states’ rights”.

    The voters of Oregon voted–TWICE–to allow physician-assisted suicide. The unelected Attorney General (who couldn’t beat a corpse in a Senate race) decided to change his mind about federalism all of a sudden and use the DEA as a threat against doctors who prescribed life-ending medications. Let the voters decide?

    http://writ.news.findlaw.com/dorf/20011114.html