February 26, 2004

Well Said:

The model [marriage] 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 ..

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 ..

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 .. ".

-- The Wall Street Journal.

Posted by Greg Ransom | TrackBack