2.11.2004

POLITICS - Gay Marriage

The Washington Post notes that Bush is ready to support a specific Amendment banning gay marriage. This has been a hot issue behind the scenes of the Republican party in DC, and it's about to break nationally. Unfortunately, the proposed amendment only serves to obfuscate the issue, but to be fair to President Bush, this proposal is a clear extension of his Administration's policy to be as divisive as possible. From the WaPo:
Musgrave's proposal, called the Federal Marriage Amendment, states: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

The second sentence is the deal-killer here. It possibly prohibits states from granting the legal and social benefits of marriage to gay civil unions. This amendment is a one-two knockout punch to gay couples. Not only does it forbid them from entering into a legally recognized relationship, but it will inhibit gay couples from fulfilling their legal and social obligations to each other. Even worse, this proposed amendment could even prohibit "common law" heterosexual couples from the benefits that they have enjoyed for decades.

This amendment, in its current written form, would set a dangerous precedent for contemporary politics. It is deliberately vague, and blurs the boundaries between federal and state law.

We need to be aware of our place in history. The constitution has worked pretty well over the past two hundred years, and we'll probably need it for another couple hundred. If we are going to modify this important document, then let's do it with clear and explicit language. To wit, Eugene Volokh says:
When you're deciding whether to support a proposed amendment, I think it's important to think about these ambiguities. Even a 50% or a 25% chance that an amendment will be interpreted to yield bad results might offer enough reason to oppose it (though of course much depends on how bad you think the bad results would be, and how good the good results would be). And if the amendment is still in the drafting stages, why not modify it to avoid these ambiguities in the first place?

Why not modify these ambiguities right now? Well, I think that they are there for a specific purpose.

These ambiguities are the result of a compromise in the Conservative party between the Christian Right and the Moderate Right. The Moderates know that they can sell an amendment that defines Marriage as a union between a man and a woman, but they realize that it's much tougher to sell the rest of the country an amendment to deny legal benefits to gay civil unions. However, Christians don't want gay couples to have any rights whatsoever, in fact, they don't want gay couples to even exist on the face of the planet. The Musgrave amendment plays to the Christian base, and places the Moderate issue of legal benefits in a gray, abstract zone.

Bush absolutely has to respond to the desires of the Christian right, and I think that's going to hurt him in this election cycle. He can't win the election without his base, but his base isn't going to accept an amendment that allows homosexual civil unions with full benefits. The question now becomes, "Will the rest of the country support a constitutional amendment that prohibits states from granting full legal benefits to same sex couples?" I don't think so.

This proposed amendment will be perceived as an attack on the homosexual lifestyle. The Repubs spoke out against homosexuals at the '92 National Convention, and while it charged the base, it also drove out some moderates and independents in the party. Millions of heterosexual Americans may want to reserve marriage for themselves, but they seem willing to share equal rights and benefits with their homosexual brothers and sisters.

Conservatives want to introduce this amendment, and hope that the resulting discourse will hammer out the details. That is definitely a common practice when creating legislation. By 2006, Congress could modify the language and allow civil unions with full benefits. But I don't think that we want to take that approach with this ammendment. The majority of Americans will be wary to support this current draft of the amendment once they hear five different commentators offer five different interpretations. After the WMD debacle, Americans want explicit language from our leaders. This amendment may be perceived as more "Bush-Speak" that shoots for the moon, but fails to deliver.

For more views on this, check out the last two days of posts at Volokh, Tapped, and James Joyner.

And what do the Aunt Tom Republicans say about this? The same thing that they said since 1978... "We're upset by this rhetoric, but we care more about tax cuts than our own sexuality. Of course, some of us are really close to leaving the Republican party, but we've been saying that for over a decade now. As long as we get our tax cuts, we don't really give two flying craps what our party says about our sexual freedoms. Erections may come and go, but hopefully we can make our tax cuts permanent!"

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