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June 5, 2006
Fighting The Symptom And Not The Disease

President Bush, as expected, spoke today on behalf of efforts to amend the Constitution to establish a definition of marriage outside the reach of judicial mischief. To no one's surprise, the definition establishes "one man, one woman" as the national standard. He gave this statement at a speech this afternoon, some of which I heard live and the rest from a recording of the event:

This week, the Senate begins debate on the Marriage Protection Amendment, and I call on the Congress to pass this amendment, send it to the states for ratification so we can take this issue out of the hands of over-reaching judges and put it back where it belongs -- in the hands of the American people.

The union of a man and woman in marriage is the most enduring and important human institution. For ages, in every culture, human beings have understood that marriage is critical to the well-being of families. And because families pass along values and shape character, marriage is also critical to the health of society. Our policies should aim to strengthen families, not undermine them. And changing the definition of marriage would undermine the family structure. ...

Today, 45 of the 50 states have either a state constitutional amendment or statute defining marriage as a union of a man and a woman. These amendments and laws express a broad consensus in our country for protecting the institution of marriage. The people have spoken. Unfortunately, this consensus is being undermined by activist judges and local officials who have struck down state laws protecting marriage and made an aggressive attempt to redefine marriage.

Since 2004, state courts in Washington and California and Maryland and New York have ruled against marriage laws. Last year, a federal judge in Nebraska overturned a state constitutional amendment banning same-sex marriage, an amendment that was approved by 70 percent of the population. And at this moment, nine states face lawsuits challenging the marriage laws they have on the books.

I know that this topic gets the conservative base cranked at election time. When he covered the state GOP convention last week, King Banaian told me that nothing generated louder applause and cheers than the mention of Republican opposition to gay marriage. The problem for me is that this is really two separate issues, especially in the framing Bush used, and the crux really has almost nothing to do with allowing gays to have civil marriages or not.

For the record, it makes little difference to me whether gays marry or form civil unions. The two states are identical in law, with the one caveat that a civil-union contract might be more binding than a marriage, at least legally. Marriage is the only contractual relationship that one partner can end with no penalty, at least in most states. Try that with a prenuptial agreement, however, and one will be surprised at the way the law handles those contracts, a strange bit of irony for a society that supposedly must protect marriage in its current state. Civil law gave up protecting the sanctity of marriage decades ago. If Andrew Sullivan wants to marry his significant other, it has no affect on my relationship with the First Mate; if I was that insecure, I never would have gotten married in the first place.

What matters to me is that decisions about the nature of public policy get made in a democratic fashion. Marriage is a public recognition of a legal status between two people, and the public has the right and responsibility to define that as they see fit. The lack of a marriage option does not mean that the government has banned gay relationships, but that public policy decided by the people or their representatives choose not to bestow any legal recognition to the relationship. Laws defining marriage at the "one man, one woman" standard do not intrude into the bedroom, but do define how the government chooses to recognize relationships, and that decision belongs to the people.

From my perspective, judicial activism offends the conservative base much more than gay marriage itself. Why not, then, just concentrate on that? Bush hit the nail on the head when he noted that judicial intrusion on decisions made by the people on this issue require a Constitutional amendment to remedy. Jurists at all levels must decide these matters within the framework of that document. However, the approach endorsed by Bush and some of the GOP would eventually transform the simple clarity of our Constitution into a miniature version of the US penal code, with marriage amendments, flag-burning amendments, and so on.

The simpler solution would be to craft an amendment that requires a literal reading of the Constitution, one that forbids jurists from using emanations from penumbras to create unassailable public-policy decisions that should be left to the people. This would have a number of salutary effects. First, it would greatly reduce the partisan warfare over judicial appointments. Instead of playing hide-and-seek with nominees to find out whether they think an amendment prohibiting unreasonable seizure means that teenagers can have abortions without parental consent, we can stick to how learned and capable nominees are and whether their experience qualifies them for a seat on the bench. In many cases, it would force policy back to the states where it belongs, and limit federal power to the original intent of the framers. Such an amendment would also negate the impulse among activists of all stripes to achieve policy victories in the courts rather than in the legislatures where they know they cannot win. Finally, it would put to rest these tiresome and rabble-rousing initiatives that have no prayer of actually winning.

That's a Constitutional amendment that I could support. That would return political power -- and accountability -- to Congress and the states, those places where the people provide for their own rule under the original intent and genius of the Constitution. It would make these arguments moot, and allow our representatives to do their jobs the way our Founders intended.

UPDATE: Hot Air has a roundup of reactions from the starboard side of the blogosphere -- and surprisingly, most conservatives have grown tired of this debate. Patterico, La Shawn Barber, Confederate Yankee, and the Political Pit Bull all oppose the effort. Does anyone like it?

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Posted by Ed Morrissey at June 5, 2006 8:06 PM

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George W. Bush has lost his mind, as shown by this statement: This week, the Senate begins debate on the Marriage Protection Amendment, and I call on the Congress to pass this amendment, send it to the states for ratification so we can take this i... [Read More]

Tracked on June 6, 2006 6:15 PM


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