Wednesday, March 03, 2004

Gay Marriage Debate--The Real Issue

The country's convulsed about expanding civil marriage to homosexuals. I offered my opinion a month ago. I take no position on marriage, gays or the proper position for state legislators. In short, I concur with Charles Krauthammer's well reasoned article in the February 27th WaPo.

Krauthammer's (and my) qualms concern democracy and Federalism. America is a republic--meaning the people choose representatives who write and pass laws. Federal and state Constitutions contain (mainly in the "Bill of Rights") specific minority views that cannot be eradicated by popular or legislative majorities. So, for example, Congress can neither legalize slavery (13th Amendment) nor disregard the votes of women (19th Amendment). The Constitution enumerates specific powers and duties lawfully exercised by Washington--and allocates the rest elsewhere: "any powers not delegated to the United States by the Constitution . . . are reserved to the States respectively, or to the people. " (Amendment 10).

In short, most controversies in America are resolved through debate, vote and legislation. The Constitution does not contemplate "punting" the controversial to courts. Not even where the legislature or the people are deadlocked--whoever earns 50.1 percent of the vote wins.

The U.S. Constitution doesn't mention marriage. Thus, under the 10th Amendment, the definition of, and authority over, marriage is a state law issue. [The oft-cited exception--Loving v. Virginia, where the Supreme Court voided state laws prohibiting interracial marriage--was founded on the 14th Amendment's prohibition of racial discrimination; the 14th Amendment neither mentions, nor previously was thought to address, sexual preference.] So federal courts shouldn't be able to "find" a new Constitutional right for same-sex marriage. And although not prohibited by the U.S. Constitution, I oppose state judicial imposition of same-sex marriage--including the one-vote majority of Massachusetts lawyers on that state's high court. My reasoning's similar--like the Federal government, states should adhere to the democratic process via the vote. I don't reject gay marriage--if authorized through state law originated and passed by the legislature and signed by the executive.

The Federalism fears are more complicated but fully set forth in my earlier essay. In brief, there is a substantial risk that gay marriages, valid in the state in which they are performed, must be honored by every state, including states where gay marriage is unlawful. Given the modern ease of travel, it is possible--even likely--that a single state authorizing gay marriage would decide the issue for the entire nation.

[Legal analysis--for the brave. Article IV, Section 1 of the Constitution requires states to give "full faith and credit" to the "public Acts, Records, and judicial Proceedings of every other State." This normally is thought to ensure that "a marriage which is good in the [jurisdiction] where performed. . . is good elsewhere." Older cases suggested that states might not be required to recognize marriages repugnant to morality, see Lanham v. Lanham, 117 NW 787 (Wi. 1908). However, recent cases narrowed any exception, see In re May's Estate, 114 N.E.2d 4 (NY 1953) (recognizing Rhode Island marriage between uncle and niece residing in New York even though New York law prohibited such marriages). Many scholars believe "public policy" exceptions to full faith and credit are unconstitutional. Even if Constitutional in the past, it is impossible to imagine that a state today could disallow out of state gay marriages for reasons of morality--only last year, the Supreme Court's Lawrence v. Texas decision forbade a state from enforcing "views on the whole society" based on its "own moral code." It's hypocritical in the extreme for gay marriage advocates--who embraced the Supremes' decision--to maintain that states today lawfully could reject out-of-state gay marriages. And the Clinton-signed Defense of Marriage Act (DOMA)--which purports to "interpret" Full Faith and Credit to permit non-recognition of out-of-state gay marriages--is probably unconstitutional: Congress cannot authoritatively interpret the Constitution, it can only amend it. The unconstitutionality of DOMA is one of the few precepts in the gay marriage debate supported by both the political left and right.]

Still with me? So far, I've only said that gay marriage debate and decision is a duty of each states' voters and legislatures--which will require a change to "full faith and credit." Consistent with Krauthammer, any Constitutional Amendment should not address national policy on gay marriage--either for or against. As suggested by Senator Hatch and the WSJ's James Taranto, the best outcome would be: Let the people and the states decide. (Although I admit this solution has practical flaws--most of which are raised in David Frum's excellent list of gay marriage "hypotheticals." Frum's article also undermines claims that Massachusetts single-sex marriage would have no extra-territorial effect.)

Which is why I loved Jonah Goldberg's NRO article today. Like me, Jonah is silent on the merits of same-sex coupling. Instead, he attacks the logic of many gay marriage proponents. He's steamed by the hypocrisy invoked to oppose any Constitutional amendment. Goldberg quotes Demo party chair Terry McAuliffe:
Our Constitution, a sacred document -- you know, our forefathers knew what they were doing. This wasn't a rough draft. And let's not try to continually do amendments to it as we move forward. I would like the states to make the decisions on what they think is right in their individual state. It shouldn't be up to the federal government.
Exactly!--Terry's neatly summarized conservative "judicial restraint" and "strict construction." Yet liberals like Terry rhapsodize regarding Griswold v. Connecticut and Roe v. Wade, where the Supreme Court literally invented doctrines unsupported by Constitutional language. Activist courts thus "federalized" dozens of very personal issues, removing them from "their individual state." Even liberal (but fair) Supreme Court Justice Ruth Bader Ginsberg conceded that abortion rights discussions would be less polarized had citizens and legislatures been permitted to debate and vote. Thus was freedom stillborn by Judicial fiat.

Why do liberals flip sides and oppose an Amendment? Because Democrats distrust democracy. Jonah explains:
Most of the liberals invoking the inviolability of the Constitution in the debate against the FMA are the same liberals who generally invoke the doctrine of a "living Constitution," which demands that we constantly "reinterpret" the document.

For example, in 2000 when asked what kind of judges he'd appoint, Al Gore replied, "I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people."

Are you cottoning on to my confusion yet? Liberals believe that the Constitution shouldn't be literally changed but they advocate a constantly changing meaning for what's already in the document.
Put differently, liberals think stupidity should be unconstitutional. But that's neither practical nor part of the Constitution--as Justice Thomas eloquently expressed in his two paragraph Lawrence dissent.

Today's left ignores the intent and purpose of our Constitution. It simply wasn't designed to answer every question. Instead, the Constitution establishes a process so citizens may discuss and decide. But proposals from conservatives are different, as Jonah notes:
Why is it O.K. for unaccountable, unelected judges to willy-nilly say the Constitution says 2 plus 2 equals 5, but it's somehow tyrannical for the House, the Senate and 50 states to debate an amendment with wall-to-wall media coverage? Why are big-D Democrats so terrified of small-d democracy?
Answer: because they're content with inconsistency and comfortable with lawlessness. That's essentially the reasoning of the Massachusetts court: "Why bother to vote? It takes too long!"

Massachusetts attorneys used to be more scrupulous. Back in 1776, the most accomplished of them observed that "the very definition of a Republic, is 'an Empire of Laws, and not of men.'" That phrase was authored by founding father John Adams, America's second President--and an excellent lawyer. But liberals have forgotten that the rule of law is both a process and a goal. If you abandon the process, you eliminate any constraint on arbitrary government--especially important when your political opponents hold power. And by ignoring the goal, the left has made America less, well, civilized.

The purely procedural Constitutional Amendment supported by Krauthammer, Taranto, Orrin Hatch and me, is neither pro- nor anti-gay. It neither discriminates nor endorses. Instead, such an amendment would promote the privilege to vote, retain representative democracy and adhere to the rule of law.

Opponents of this narrow Amendment deploy hypocritical arguments in service of careless jurisprudence in order to make America's founding document optional. They're no friend of the Constitution. Nor are they either "liberals" or "Democrats." Only one word fits this lawless bunch: radicals.