This column is no fan of slippery slope arguments, but you’d have to be pretty dense not to see the events of the last few weeks as one giant unbalanced sputtering lurch toward establishing gay marriage as a right in the U.S. In Lawrence & Garner v. State of Texas, the current Supreme Court reversed an earlier decision by the same body (so much for stare decisis) to find anti-sodomy laws in the handful of holdout states unconstitutional.
The legal ramifications of this ruling have yet to be worked out, but there’s been plenty of speculation, and very little of it sounds as fanciful as it did, oh, six months ago. “Don’t ask, don’t tell,” is awfully discriminatory when you stop to think about it, and increased gay adoption is probably a no-brainer. A handful of gays and lesbians are petitioning the Massachusetts State Supreme Court to establish a right to same sex marriage. To add metaphorical weight to their plea, our Northern neighbor’s own high court decided to establish gay marriage with no caveats. Only one province — redneck Alberta — has announced its intention to opt out.
In an attempt to block the unilateral legal imposition of gay marriage by the Supreme Court through a more expansive interpretation of the “full faith and credit” clause — once one or more states have allowed gay unions, either through a plebiscite (unlikely) or local high court decisions (much, much more likely) — Senate Majority Leader Bill Frist has endorsed a matrimony amendment to the Constitution. It would define marriage as the union of two people of the opposite sex. “I very much feel that marriage is a sacrament, and that sacrament should extend and can extend to that legal entity of a union between — what is traditionally in our Western values has been defined — as between a man and a woman. So I would support the amendment,” he said on ABC’s This Week.
And the dog pile commenced. On his own website, Andrew Sullivan wrote that it was “dismaying to hear Senate Majority Leader Bill Frist casually declare he favors writing permanent discrimination against gays and lesbians into the U.S. Constitution.” Reason’s Matt Welch called Frist’s words a “Bigot Eruption” and predicted that it would contribute mightily to Bush losing the White House in 2004. (Unlikely. Welch’s colleague Kerry Howley pointed out that an absolute majority of Americans still object to gay sex and thus, presumably, to gay marriage.)
One interesting facet of this debate is that conservatives are now pressing for the marriage amendment for almost entirely defensive reasons. The history of interpretation of the “full faith and credit” clause, or the 14th Amendment for that matter, did not give traditionalists much to wring their hands about. But that was before the Lawrence decision, which, in New Republic legal affairs editor Jeffrey Rosen’s words, “embraced and extended a sweeping and amorphous right to sexual liberty that is even harder to locate in the text or history of the Constitution than the right of reproductive autonomy that the Court discovered in Roe [v. Wade].”
The governing statute on gay marriage is the Defense of Marriage Act, signed into law by Bill Clinton in 1996. Theoretically, it would skirt the problem of some states recognizing gay marriage and others not. Practically, our newly activist Supremes (and can we please stop pretending that we have an even marginally “conservative” high court?) could shred it faster than you can say eminent domain. Now that serious constitutional interpretation has been replaced by counting to five, gay marriage is looking like the odds-on favorite.
Quite a few conservatives are not sure how to respond to all this. Marriage, historically, has been an arrangement between a man and woman with the ostensible purposes of carving out a place for access to guilt-free sex and the raising of children. To most Americans, the very idea of gay marriage is a contradiction. From one angle, the marriage amendment is all about protecting the institution from being defined out of existence. And as for the argument that the federal government shouldn’t step in, they might point to Utah. There’s a reason that the modern LDS church excommunicates polygamists and it has little to do with Mormon theology.
Advocates of homosexual unions reply that marriage is hardly the inviolable institution that conservatives make it out to be. It was made less permanent in the 1970s with the introduction of no-fault divorce and the transformation of “shacking up” into common law marriage. Now, the reasons for tying the knot have shifted away from old notions of duty and legacy to personal fulfillment. It is less about doing good than being happy. And if marriage has already been changed, gays and lesbians are entitled to ask, why not again? Why deny its benefits, both tangible and otherwise, to us?
Before you venture an answer, bear in mind that history or tradition have been tossed out as acceptable explanations. I happen to agree with Frist’s statement that marriage is a Sacrament, and thus permanent, but that’s a minority opinion, even among conservative Christians. In most churches, pews are packed with quite a few parishioners on their second or third trips down the aisle, and very few Protestant ministers will refuse to marry men or women who’ve been divorced. The explosion in annulments of the last 30 years has allowed Catholics much more freedom to remarry. In fact, marriage as an institution is already so damaged that I’ll have a hard time seeing the eventual right to gay unions as anything other than the long anticipated coup de grâce.
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