From the WSJ Opinion Archives
REVIEW & OUTLOOK
Marriage and Democracy
Bush didn't start this "culture war," and voters should be the ones to settle it.
"I have long opposed governmental recognition of same-gender marriages." So said Bill Clinton in 1996 when he signed into law the Defense of Marriage Act defining marriage as the "legal union between one man and one woman."
But for endorsing a constitutional amendment this week founded on the same definition, President Bush has been vilified. "Shameful," thunders Teddy Kennedy. "The most vile and hateful words ever spoken" by a President, says constitutional scholar Rosie O'Donnell. What passes for a page-one "analysis" (that's opinion in disguise) in the Washington Post asserts that Mr. Bush is eager to "rekindle the culture wars."
To his foes, Mr. Bush's support for a federal marriage amendment is all about his unwillingness to buck his "conservative base" in an election year. Never mind that the President is doing precisely that with his recent immigration proposals. And never mind that the politics of this are hardly certain. Our sense is that Mr. Bush came to this decision slowly, almost as a last resort. It helps to review who staged the first raid in this "culture war."
About this time last year, Pennsylvania Republican Rick Santorum provoked outrage when he suggested that if the Supreme Court threw out a Texas sodomy law on the basis of a right to consensual sex, prohibitions on gay marriage would go out the window. In its Lawrence decision soon after, the Supreme Court proved his point. Notwithstanding declarations that in so ruling the Court was making no statement about gay marriage, it wasn't long before the Massachusetts Supreme Court--invoking Lawrence in a 4-3 decision--ruled that the state could not deny civil marriage to same-sex couples. None of this was by accident: The state litigation had been carefully targeted.
That was where the matter stood when Mr. Bush weighed in during the State of the Union, warning "activist judges" to cease legislating their own social views from the bench. The response? The Massachusetts court declared that nothing short of gay marriage, not even civil unions, would be acceptable. The Mayor of San Francisco started issuing gay marriage permits in clear violation of California state law. And the courts declined to stop them.
Only then did the President endorse a Federal Marriage Amendment. Introduced by Colorado Congresswoman Marilyn Musgrave, the model amendment has two sentences: The first restricts marriage to the union between a man and a woman; the second enjoins the courts from imposing a solution.
Now, even some who support a constitutional remedy wonder about the language. There is debate about whether the amendment's language would bar states from endorsing civil unions, which Mr. Bush says they should be free to do. We think this entire issue should be decided in the states, by the people through their elected legislators. And if the voters want to alter the definition of marriage as a new social consensus develops, that should be their democratic right.
But a political debate over gay marriage is precisely what its supporters do not want. They are the ones who want to impose a national solution via the courts. What the President endorses is not a federal solution but a federalist solution. In contrast to an executive order or federal law or regulation, a constitutional amendment requires not only the endorsement of two thirds of the House and Senate but the assent of the legislatures of three-quarters of the states. Amendments are historically difficult to pass, and the odds favor skepticism about its chances. But merely by being offered it will serve as a brushback pitch to the courts that this issue should be settled by democratic means.
Our social and cultural mores are changing rapidly, and accommodations for gay partners are already common in business and other American institutions. When it comes to the legitimate rights that gay Americans say their exclusion from marriage denies them--hospital visitation, inheritance, etc.--we can think of few that most Americans would not be willing to redress.
The question is whether this must also take the form of imposing an unprecedented redefinition of marriage on the majority of Americans who oppose it. Even John Kerry and John Edwards claim they don't want gay marriage. So why are they not derided as bigots, especially now that Mr. Kerry has just endorsed a state constitutional amendment prohibiting gay marriage for Massachusetts? Plainly it's because their own supporters think these men don't believe what they feel they must say--and can be counted on not to back their words up with action when the crunch comes.
We wish we could count on the courts, especially the Supreme Court, to understand the need for deference here. But anyone who has read the logic of Lawrence, or before that of Romer v. Evans, has to conclude that the current Supreme Court would all too readily impose its own views on everyone else. In the process, it would be happy to overturn not just the Defense of Marriage Act signed by Mr. Clinton, but also 50 state laws, not to mention hundreds of years of moral and legal tradition.
As we said after Lawrence, that would ignite a real culture war, roiling our society for years to come. In a better world, we could trust our judges and executives to enforce the law and trust in the process of building democratic consensus. But on the evidence of recent months, not anymore. We have reached a point where a constitutional debate may be the only thing that will guarantee Americans the right to decide such a fundamental issue as marriage in a democratic fashion.
