REVIEW & OUTLOOK
Justice Kennedy's Culture War
How gay marriage became a federal case, alas.
The Supreme Court is busy this week, but Justice Anthony Kennedy should take a moment to tune into the Senate debate on gay marriage. As the man who enabled this latest front in the culture wars, it's the least he can do.
That's the most efficient way to think about the Senate debate this week on the Marriage Protection Amendment, which would create a national definition of marriage as a "union of a man and a woman." We remain opposed to federal interference in this issue, believing that issues of family life and law are best settled in state legislatures. Yet given the way activist courts have turned gay marriage into a national issue, it's no surprise that Congress joined the fray.
Senate Majority Leader Bill Frist knows he's unlikely to get many more than the 48 votes he got the last time he brought up this amendment, in 2004. Constitutional amendments require a two-thirds majority, and only one Democrat, Nebraska's Ben Nelson, is publicly on board. So some of this is about rallying a demoralized conservative base.
But the amendment vote can't be understood outside of the anxiety created by activist courts. Justice Kennedy wrote the majority opinion in the 2003 Lawrence case that banned state anti-sodomy laws. So sweeping was his "privacy right" language that it took only a few months for the Massachusetts Supreme Court to use Lawrence to justify its decision to impose a right to gay marriage there. Politicians in New York and San Francisco began issuing gay marriage licenses, never mind state law.
So here we go again with another values issue about to become an endlessly polarizing national debate. Beltway politicians can posture knowing nothing much will change. This is the history of abortion since Roe v. Wade, with both sides at the same barricades 30 years on. The Founders left such thorny social issues to the states precisely to allow the democratic give and take that can reach a rough consensus, as well as adjust as social mores change.
That's what the states have been doing in recent years. Some 19 states now have constitutional amendments protecting "traditional" marriage; another 26 have statutes doing the same. Alabama voters yesterday endorsed such an amendment, and six more states will have the question on November ballots.
States have also devised a range of policies for civil partnerships or other legal rights for gay couples. These innovations reflect the reality that most Americans oppose extending the term "marriage" to gays but are open to other legal arrangements. Colorado voters may face ballot initiatives this fall dealing with both a definition of marriage and domestic partnership rights.
Supporters of the national ban say an amendment is necessary because willful courts won't honor those voter verdicts. They have a point. A federal court struck down Nebraska's ban on gay marriage last year even though 70% of the state's residents voted for it. Bans have been overturned in Washington, California, Maryland and New York.
But it's far from clear that a Constitutional amendment is necessary to stop this just now. Congress passed the Defense of Marriage Act in the 1990s, and sooner or later the Supreme Court will decide if this clashes with the Constitution's "full faith and credit" clause that applies one state's laws to the other 49 (i.e., easy Nevada divorce). If the High Court overturns the Defense of Marriage Act, there'd be a much stronger case for something as rare, and politically difficult, as passing a Constitutional amendment. Meantime, this is another argument for confirming President Bush's judicial nominees.
As for liberals, they might consider that their best chance to change minds is through open state debate, not coercive courts. Polls show Americans are becoming more comfortable with civil unions and other gay rights. In fact, the best thing gay activists could do for themselves at the federal level would be to support repeal of the death tax, since under current law gay couples often lack inheritance rights. That would accomplish more than anything that will emerge from this week's political spectacle over amending the Constitution.
