Skip to comments.Gay Marriage and Ambivalent Conservatives
Posted on 02/21/2004 4:07:01 PM PST by Federalist 78
A curious thing happens when talking to younger conservatives about gay marriage. While many of them think same-sex marriage is in some ways an incoherent notion, I haven't come across any who think that gay marriage will not at some point be permitted. What's more, many of them are not particularly distraught at the prospect.
It's true that some of them who are vigorously opposed to gay marriage feel that other laws troubling to them -- such as legalized abortion -- have been foisted upon them by activist judges, and so they think gay marriage will prove to be no different. And others opposed to same-sex marriage sense the tide of public opinion is shifting away from them and that, despite what current polls might say, more and more people will not want to deny gay couples the ability to wed. Still others think the institution of marriage has changed so much that, from a legal standpoint, there are no good reasons left to prohibit gays from marrying.
But the libertarian writer Virginia Postrel touched on another dynamic at work, one that captures why a lot of self-described conservatives haven't lost a lot of sleep over the gay marriage debate. On her personal website she recently linked to an Associated Press article that pointed out the following:
"Massachusetts has one of the highest concentrations of gay households in the country at 1.3 percent of the total number of coupled households, according to the 2000 census. In California, 1.4 percent of the coupled households are occupied by same-sex partners. Vermont and New York also registered at 1.3 percent, while in Washington, D.C., the rate is 5.1 percent."
Postrel went on to say that this "helps explain why DC conservatives, including the president, tend to squirm when their base demands condemnation of gay marriage and gays in general: If you work in Washington, you inevitably have gay friends, many of whom are de facto married." Ambivalent Conservatives
On the subject of gay marriage, many conservatives today are what might be called "ambivalent conservatives." They call themselves conservatives; but they are more comfortable saying that, while they certainly aren't exactly what you would call for gay marriage, they don't have much stomach to be against it, either. As one put it to me the other day: "I guess I don't really care. That's my strongly staked-out position." Jonah Goldberg of National Review captured some of this ambivalence when he recently wrote, "Whether you're for it or against it, many of us just don't want to hear about it anymore."
Lots of younger conservatives think of themselves as tolerant, freedom-loving and possessing metropolitan sensibilities; but they also revere tradition and aren't comfortable with needlessly monkeying around with old institutions. The issue of same-sex marriage sits atop the intersection of these values.
Thus, ambivalent conservatives, while not finding the claims made by gay marriage proponents to be entirely persuasive, also are uncomfortable with the opponents to such marriages fiddling with the Constitution. They are uncomfortable with the proposed Federal Marriage Amendment (FMA), which reads in part:
"Marriage in the United States shall consist only of the union of a man and a woman."
The conservatives advancing this amendment say without it the courts will read into the Constitution a right to gay marriage, so an explicit prohibition is necessary. Ambivalent conservatives may think that's likely, too, but many of them are still uneasy with this kind of amendment, have no interest in supporting it, and feel they are left scrambling for a political position they can articulate and be comfortable with and that reflects their values without compromising core principles.
To many of them, one argument advanced by the non-partisan writer Jonathan Rauch in his forthcoming book "Gay Marriage: Why It Is Good for Gays, Good for Straights and Good for America" is likely to prove attractive. Rauch says that, if an amendment is to be pushed by conservatives, it needn't be the FMA that defines marriage as a union of one man and one woman.
In an email exchange, Rauch explains:
"I don't think any amendment is necessary or desirable. The Defense of Marriage Act (DOMA) is certainly constitutional, and amending the Constitution unnecessarily is a bad idea.
"But I grant that some federal judge might disagree with me and set off a national panic before being clobbered by the U.S. Supreme Court.
"So if the problem is the worry that federal judges will impose Massachusetts's gay marriages on the entire country, the way to take care of that would be to constitutionalize DOMA. The sample wording I give in my book is:
"'Nothing in this Constitution requires any state or the federal government to recognize anything other than the union of one man and one woman as a marriage.'
"That's an ironclad guarantee that the states and federal government can all go their own ways, without any national court mandate.
"This is consistent with federalist principles. It's consistent with three centuries of marriage being in the states' purview. It keeps overweening federal judges out of the picture. (Activist state judges are the states' business, so long as no state can impose its own decision on others.) It prevents the polarization and culture war that nationalizing this debate will spark. It would be a cinch to enact, at least compared with the Federal Marriage Amendment sponsored by Musgrave et al. And it's in tune with what a majority of Americans are telling the pollsters -- namely, that this issue should be left to the states."
It's possible -- probable even -- this approach will appeal to conservatives for whom federalism is a cherished political value. Moreover, this Rauchian effort at a solution might appeal to President Bush, who on the issue of gay marriage has exhibited some of the characteristic tics of an ambivalent conservative. Bush has said he believes marriage is between one man and one woman. But he has also been reluctant to condemn gay marriage forcefully or to embrace a constitutional amendment explicitly banning gay marriage (and that is not because Bush is unaware that his endorsement is coveted by supporters of the amendment).
Asked about the recent events in San Francisco with gays receiving illegal marriage licenses, the President expressed displeasure, but also said, "People need to be involved in this decision. Marriage ought to be defined by the people not by the courts.'' One way to make sure the decision is made by people and not by courts is through the Rauch amendment that leaves the decision with the states. It's a political position a lot of ambivalent conservatives will likely find appealing.
Marriage Protection Act of 2003 H. R. 3313
To amend title 28, United States Code, to limit Federal court jurisdiction over questions under the Defense of Marriage Act.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make
In the 107th Congress (2001-2002), Congress used the authority of Article III, Section 2, clause 2 on 12 occasions to limit the jurisdiction of the federal courts.
The Marriage Protection Act addresses that possibility by removing the Supreme Courts appellate jurisdiction, as well as inferior federal courts original and appellate jurisdiction, over DOMAs full faith and credit provision. It also removes appellate jurisdiction from the Supreme Court and inferior federal courts over DOMAs marriage definition.
This is the sort of legislative check the Founders intended. Article I, Section 8 and Article III, Sections 1 and 2 of the Constitution grant Congress the authority to establish inferior federal courts, determine their jurisdiction and make exceptions to the Supreme Courts appellate jurisdiction. By implementing this legislative power we can preserve each states traditional right to determine its own marriage policies without federal court interference. (For instance, a state of appeals court in Arizona last week upheld that states DOMA law.)
Congress clearly has the power to enact legislation defining the full faith and credit effect of states' laws, records and judgments. The very language of the Full Faith and credit Clause of the Constitution (Article IV, §1) explicitly provides that "Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof." The Supreme Court has repeatedly acknowledged Congress' constitutional authority to establish full faith and credit rules.
The second problem with this "Marriage Amendment" is that the U.S. Government has no authority or right to define marriage, only God has. James Madison observed in The Federalist, #45, "The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." This amendment would, for the first time ever in history, give the federal government jurisdiction over marriage and the home. The 10th Amendment is our protection from the federal government getting involved where they should not be. Marriage should remain exclusively under state dominion. My state, as many others, already has laws that define marriage. When the Federal government decides that marriage can be anything it wants it to be, what happens to the state laws?
To truly save marriage the way God intended it to be is to attack the root of the problem. The root of the problem is you and me, the Christians who are ignorant of the Constitution, who vote into office pro sodomite Republicans, Republicans who are afraid to take a stand, and Republicans who will not impeach judges or reign in their jurisdiction.
Article III Section 2 of the U.S. Constitution has the remedy for tyrannical unconstitutional judges. Congress is to impeach them or reign in their unlawful rule.
They have not done their job because we have not made them do their job.
I am very concerned with why pro family groups like Focus on the Family and American Family Association who are behind this amendment when they know it will not help. Something strange is going on here. The cure is very simple - make congress do their job. Adding an amendment to the constitution takes 2/3rds of the states voting yes, a great feat and very expensive. It will not stop runaway judges!
Maybe it might have something to do with how the younger people (especially the men) having had a front row seat to view what happened to the fathers, brothers, uncles and friends when they wound up in divorce court and found out that they have near zero rights once they are served with the divorce papers. Maybe some have been through it themselves already. No-fault divorce laws have made marriage an expensive joke. Get rid of those laws from the 1970's and marriage won't need an "act" to defend it...it will be big enough to take care of itself again.
That's not sufficient. We need to seriously reform the divorce laws and put in a constitutional amendment.
I'll sign on to that!
That's the problem with the centralized government model that members of both parties try to impose on the country. The people liviing in the capitol are different in attitudes from people living elsewhere in the country. If Congress fails to approve a constitutional amendment, the states ought to call for a constitutional convention. That ought to scare a few politicians in Washington.
No! It's time to "tear down that wall"!
I think what we are seeing is the inevitable outcome of more than 30 years of marriage being debased by the divorce industry. People are not going to take to the streets with pitch-forks and torches to defend an institution with a more than 50% failure rate. All anyone needs for a divorce is the fee for the lawyer. And anyone who has already been processed on the sheep-shearing assembly line style "family courts" isn't going to be in a big hurry to defend an institution run by divorce lawyers. Especially since the "defense of marriage" crowd stood by and did nothing for decades while millions of families were destroyed by the divorce industry. The time to defend marriage was a long time ago. With the state marriage is in now, there aren't going to be too many super-majorities available to stand up for it.
They should watch out what they wish for. The way things are right now, let them have it. A few years later once they get a taste of the 50% divorce rate and the Hell that goes with divorce, they will scream to reverse the policies that let them get "married." It will wreck their lives just like it has for tens of millions of straight people.
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