The Right Thing?

The Right Thing? - Gay Marriage is one of those things, like abortion; I have an opinion about it, but the issue intersects with my day-to-day life so rarely that it seems to be of only academic interest.

But of course, like abortion, the key issue isn't so much about whether gay people marry or get health benefits; it's about reining in the power of the Imperial Court.

The Times goes over the part that's, on the face of it, most controversial:

"The amendment should fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage," Mr. Bush said.

Determining whether the text of the proposed amendment would accomplish that, however, can require a close reading, to say the least. The amendment reads: "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...

..."Constitutions are interpreted over time," said Evan Wolfson, executive director of Freedom to Marry, a group opposed to the amendment. "You don't write a gamble like that into the Constitution."

Robert H. Bork, the conservative former judge and former Supreme Court nominee and a leading drafter of the amendment, called that argument "preposterous." He said that the text clearly restricted only courts, not legislatures. What is more, Mr. Bork said, the public debate over the amendment would determine how any court interpreted it. If voters approving the amendment believed it meant one thing, courts would be hard pressed to say it meant another.

Matt Daniels, a lawyer who founded the Alliance for Marriage and who is another drafter of the amendment, said the semantic debate was beside the point. "We, the group that drafted the text and introduced it into the House and Senate," Mr. Daniels said, "are fully open to minor changes to the wording to make it clear, explicit and unambiguous." "

This seems to be the major sticking point - some of my liberal friends believe (erroneously, I think, but I'm no lawyer) that this proposal would prevent civil unions; while the social conservative in me would applaud, the libertarian would not.

And I think the only case for gay marriage (as opposed to civil union) is purely libertarian. I've gone back and forth on this issue over the past two years, and while the likes of Andrew Sullivan make a few good arguments (not even the Catholic Church seriously treats marriage as procreative; most churches recognize divorce, which Christ condemned, dang the luck), nobody has yet attacked the idea, as old as civilization, that marriage is between a man and a woman and nothing else.

And as good as the arguments frequently are, they all seem to be filigrees around that one key, seemingly-immutable idea.

Make no mistake; I consider marriage a religious event. Civil "Marriage" is to me purely a contract - I object philosophically to the idea of a "marriage license", and think government should limit itself to enforcing contracts. I doubt I'd ever marry in a church that recognized the idea of gay marriage (on the off chance that I ever got married again anyway).

I also dislike the idea of noodling with the Constitution over trivial matters - but given the rampant, near-tyrranical activism of the courts, I can see the rationale for this amendment.

Politically? Well, that's fodder for a whole different post.

Posted by Mitch at February 25, 2004 05:07 AM