The Gay Marriage Debate
On the one side, we’ve seen a virtual boycott from Democrats (many of whom, I suspect, privately support gay marriage) who seem to lack the courage of their convictions. In the first two days of Senate debate, only California senator Dianne Feinstein addressed substantive issues, and in a quite defensive address. The only positive portrayal of gay marriage came from Rhode Island Republican Lincoln Chafee, who termed the amendment “nuts.” “To be seen,” he continued, “as the party that's coming between two people that love each other doing what they want to do ... to me that's going to be seen as a liability, politically."
Amendment supporters, meanwhile, have alternated between overstatement and factual inaccuracies. This week’s The New Republic features Andrew Sullivan taking apart President Bush’s Saturday radio address endorsing the amendment. In Monday’s Senate debate, meanwhile, the normally level-headed Orrin Hatch delivered a speech that called into question whether the Judiciary Committee chairman understands basic principles of constitutional law. The Utah senator asserted, “Four liberal justices versus three liberal justices have said this is going to be applied to all of America, because it applies as law in Massachusetts, and under the full faith and credit clause that law must be recognized in every State in the Union.” In a Tuesday appearance on CNN, Hatch dropped the future tense and essentially maintained that, in the aftermath of the Goodridge decision, gay marriage is currently legal in all 50 states.
Since polls don’t show strong support for the marriage amendment, why have Senate Republicans gone ahead with it? Three reasons—not mutually exclusive—come to mind.
1.) Bill Frist is out of his league as majority leader. Frist seems to have assumed that 48 or 49 Republicans would support the Musgrave amendment (which prohibits both gay marriage and civil unions), or, at the very least, Democrats would filibuster and so the only recorded vote would be on a cloture motion. Neither, of course, has happened.
2.) Republicans have recognized that, regardless of the national polls, this issue will serve them well politically. As yesterday’s L.A. Timesreported, proposed state constitutional amendments to ban gay marriage will be on the ballot in nine states, including Michigan and Oregon—and, possibly, Ohio. It’s hard to imagine Kerry winning the presidency without capturing Michigan and Oregon, yet a massive turnout from social conservatives energized by a desire to block gay marriage could throw one or both states to Bush.
3.) The real target of the GOP’s attacks against “activist” judges is not a member of the Massachusetts Supreme Judicial Court but instead Justice Anthony Kennedy. Despite Hatch’s histrionics, I share his belief that the Supreme Court, at least as currently constituted, eventually would legalize gay marriage. As my student Yehuda Katz has noted, as far back as 1891, in Union Pacific Railway v. Botsford, the Court maintained,"No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law."
In the more famous Loving v. Virginia decision of 1967, the Court held, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”
Most important to the prospects of a gay marriage decision is the boldness of Kennedy’s wording in Texas v. Lawrence. The normally circumspect Justice went out of his way to dismiss the reasoning behind Bowers, and then maintained, “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.” Kennedy concluded, “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
Perhaps Hatch, Frist, and their allies want to preview for Kennedy the type of backlash that they could generate if the Justice ever used words like those above to justify his casting a fifth vote to uphold the constitutionality of gay marriage.