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Monday, May 09, 2005

Marriage talk

The debate about gay marriage has gotten about as polarized as a debate can get. One side argues that forbidding civil marriage rights to same-sex couples can't be justified constitutionally, while the other side argues that marriage is by definition is between a man and a woman. The closest thing to middle ground in this debate is the idea of civil unions: extending most if not all legal benefits to same-sex couples in relationships that don't constitute legally recognized marriages. It seems worth pointing out that the fact of our society having this debate is an indication of how highly marriage is valued — by both sides. And to that extent, the very debate is evidence of the well-being of marriage as an institution — a foundational institution. Same-sex couples attest to marriage by wanting to participate; opponents of that option base their position on wanting to defend marriage. One need not agree with Andrew Sullivan's argument that the best case for gay marriage is a conservative one, just as reasonable folks can disagree with Bill Bennett's call for preserving marriage as traditionally defined and practiced. Both men clearly believe that because marriage is important we should proceed not casually but with the greatest deliberation. That the debate is bringing into awareness the manic rise divorce rates is likewise a good thing. That Sullivan and Bennett have fundamental disagreements is obvious. Where they agree is that the future of marriage is a matter of great moral and civic significance. To my lights, this makes all the more necessarily some acknowledgment that what we (as a society) are having here is a conversation about what nearly everybody agrees is a matter of great moral and civic significance. This stands out for me because it doesn't look like the gay marriage debate is likely to become less polarized anytime soon, what with judges affirming same-sex marriage from the bench while voters in state after state are saying no. I continue to wonder whether leading proponents of same sex-marriage are giving serious thought to the political consequences of winning their battles in courts of law rather than legislative halls. Proponents may be correct that public opinion is shifting slowly in their direction on this issue. Yet it seems to me that opponents continue to have the upper hand, because the dynamics of amending state constitutions tend to be in their favor. That is, whenever a state legislature votes to say yes to same-sex marriage, or whenever a state court votes to extend marriage to same-sex couples, opponents can simply collect enough signatures to let the voters of that state decide whether to amend the state constitution to limit marriage to one man and one woman. When voters say yes in those elections, their decision has the effect of making traditional marriage constitutional, rather than unconstitutional. Of course, that still leaves open what the U.S. Supreme Court will do. When (not if) the Senate confirms a Bush appointment to the high court, that new member will likely be a proponent of traditional marriage. Yet he or she is also likely to be a federalist — an advocate of state sovereignty. And the hallmark of federalism is a preference for letting states decide on issues lacking specific federal (national) jurisdiction. All the more reason why the stakes are so high in the filibuster controversy.