The End Of The Beginning

For better or worse, I’m not acquainted with any passionate opponents of gay marriage, so I have few resources for judging how such opponents view their beliefs and themselves in the larger contexts of progressive politics, constitutional precedent, or human liberty.  But every single member of the political and journalistic establishment that supports the Federal Marriage Amendment has explicitly admitted that they see this as their last chance to stop the spread of this "peculiar institution;" that without the FMA, some "activist" judiciary might decide that Equal Protection actually means Equal Protection and thus require a state to acknowledge the human dignity present in an incident of gay marriage.  In asserting such urgency, proponents of the FMA are both wrong and right.

They are wrong in the legal sense, and here is where I would hope the Democratic nominee will seek the safety that Bill Clinton provided for him.  As much as I was dismayed by the Federal Defense of Marriage Act in 1996, the Act clearly permits the states to refuse to recognize marriages, civil unions, or other "proceeding . . . respecting a relationship between persons of the same sex" from other states.  So the claim that, say, Texas will have to honor same-sex unions solemnized in Vermont or Hawaii is entirely false.  At present, 38 states have already legislatively defined marriage as an exclusively heterosexual province, but even if (out of some anti-democratic, social-engineering, moral-relativistic "activism") more state supreme courts follow the path of the Massachusetts Supreme Court and find such legislation to be in violation of their state constitutions, the states are still free to amend their own constitutions as they see fit without requiring other states to recognize their policies.  The Democrats (and sane Republicans, if they like) can and should safely state, "Marriage has never been an issue for the federal government, and we don’t see why it should be one now.  Amending the U.S. Constitution is never to be taken lightly, and this issue simply doesn’t rise to the required level of urgency."  This position is legally sound, factually true, and will compare favorably with the more hysterical advocates that we can expect to hear far too much from in the coming months.

Proponents of the FMA are right, however, when they say that they cannot allow even a single enclave of gay marriage to endure within the Republic; the example of a community that officially endorses the rights of gays and lesbians to enjoy all the benefits of society will be ultimately corrosive to the institutionalized bigotry that imagines marriage needs "defending" and produces such shameful legislation.  The manifest absurdity will bring it all crashing down.  It is helpful to remember that the Secession Crisis of 1860 was provoked not by an attempt by the Federal government to abolish slavery in the South, but by the election of a presidential candidate who advocated merely the prohibition of slavery in newly-admitted states.  The South feared the diminution of their electoral power (60% of their slaves counted towards representation, remember), but more than that they feared the successful examples set by non-slave states; they wanted to restrict the liberty of others because the exercise of that liberty humiliated them.  Had the South simply accepted Lincoln’s program, it is likely that they could have maintained slavery in their own states for many more years.  Instead, they listened to the counsel of their pride and their fears.

Note that I don’t imagine George W. Bush to be a homophobic bigot, any more than I think he believes that there were nuclear weapons in Iraq, or that abstinence-only sex education is the best way to prevent teen pregnancy, or that 60 is the precisely ethical number of stem cell lines with which to conduct experiments.  I do think that Karl Rove approved today’s announcement while mindful that a) this controversy has legs that will be helpfully distracting over the summer and fall, and b) the Bush Administration needn’t actually do anything about it until well after the election.  Putting the FMA formally on the table also chills legal challenges to state-level legislation; if it looks like the U.S. Constitution will override any amendments to state constitution (either for or against gay marriage), few people will get behind such projects.

We are in for a struggle that will be costly in terms of industry, treasure, and spirit.  Thanks to Bush’s shot at Fort Sumter, however, we have the comfort of knowing that our opponents have declared themselves to be the enemies of dignity.

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