President Bush has decided to back a Constitutional amendment defining marriage as the union of a man and a woman.
This isn’t necessarily a surprising move, considering the way activist judges and San Francisco mayor Gavin Newsom have flaunted the law by issuing same-sex marriage licenses in violation of existing laws.
In the end, I’m not sure I personally support such an action. Amendments to the Constitution are actions that are preserved for all perpetuity, and I have a feeling that eventually this amendment, if passed, would end up repealed like the Eighteenth Amendment – a historical anachronism soon to be discarded.
At the same time, I’m a Burkean conservative. I believe that sweeping social changes that attempt to alter the very fabric of society are never a good thing. The politics of prescription demand incremental changes and as much consensus as can made. The way in which Mayor Newsom violated the law would have consequences, and advocates of gay marriage have made a fatal mistake in pushing this issue now. Unfortunately I believe Bush is correct in this statement:
After more than two centuries of American jurisprudence, and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization. Their actions have created confusion on an issue that requires clarity.
On a matter of such importance, the voice of the people must be heard. Activist courts have left the people with one recourse. If we are to prevent the meaning of marriage from being changed forever, our nation must enact a constitutional amendment to protect marriage in America. Decisive and democratic action is needed, because attempts to redefine marriage in a single state or city could have serious consequences throughout the country.
Had gay rights advocates fought on more defensible grounds, by arguing for important incremental changes in key areas such as inheritance policy, adoption rights, and other issues, they may have been able to produce the victories they were looking for in a matter of time. Now, the chances of that happening are slim – the FMA will ensure that the debate now shifts to much less defensible argument. The term marriage is a loaded term – including not only the civil aspects of marriage but a religious connotation that has existed for thousands of years. By attempting to fundamentally rewrite such basic elements of society, the gay rights movement have shot themselves in the foot.
This amendment would leave civil unions up to the states, where it belongs, and given that exemption, I believe that the amendment has a good chance of passing. The right of marriage is something that is not a civil right, but a longstanding religious tradition embedded into the very fabric of our society. Granting sweeping privileges to a group based only on sexual orientation does open the door for pedophiles, polygamists, and others to demand equal rights as well – something that is simply not acceptable. The arguments many homosexuals use that the state can’t regulate “expressions of love” is inherently too broad – one can make the same argument for pedophilia and polygamy as well. At this point, we’re merely extending preferential treatment to one group based on sexual orientation and not others – which is not a legally tenable way of going about creating a framework for civil law.
In the end, marriage is not some elastic and nebulous concept that can be stretched to whatever circumstances. By forcing the issue, the gay rights movement has ensured that a nuanced and lasting solution to this issue will not happen anytime soon.
“I believe that sweeping social changes that attempt to alter the very fabric of society are never a good thing….The way in which Mayor Newsom violated the law would have consequences, and advocates of gay marriage have made a fatal mistake in pushing this issue now.”
Every now and then, our independent Judiciary is what saves us from ourselves. When I think about how Brown v. B.O.E. changed America, I can’t help but wonder if “activist judges,”–ones properly vetted by legislatures and councils–aren’t exactly what the Framers had in mind.
Consider this: the guys who wrote the Constitution weren’t dumb. They knew that the Legislature would be comprised of Middle-Class mercantiles, and the Executive could swing with the mood of the nation from a strong personalist to a legislator that had proved himself. The Courts, though, would only be open to those possessing both a superior education and a record clear enough to allow appointments to proceed through the confirmation process. The Court system would be the last recourse of reason, where the learned could ensure that we did not follow the path to National ruin, at least in some respects.
In addition, I wouldn’t say that it was the “gay rights movement” that forced the issue. It first gained this spotlight when IN-activist state legislatures, those non-responsive to the will of the people because of the slow machinery of legislative action, refused to remove unconstitutional violations of privacy rights by keeping sodomy laws on the books. It ws during that debate that opponents of gay rights first began talking about how marriage would be the next issue, and began preparing accordingly. Well, when the Right says something is gonna happen, and then begins preparing for it, they’re kind of making a self-fulfilling prophecy, you know? If they had said “oh we’re going to hell in a handbasket” and then not begun the marriage talk, the human rights groups wouldn’t have begun mobilizing, and Newsome wouldn’t have seen the issue as salient.
Personally, I agree that according equal rights to homosexuals in America is inevitable. I simply don’t understand why the desire to deny those rights is so strong for some.
I mean, should I list times when “activist judges”–those that sought not to create new laws but rather to remove those that violated reasonable readings of the Constitution–changed america for the better? I can think of quite a few.
What I can’t think of is a single Amendment that stood the test of time that involved RESTRICTING the rights of citizens, except those citizens seeking a third term as President. I can’t help but think of what this will do to the legacy of the Second Bush Administration on domestic policy–how do you think it would look today if there had been a President Thurmond in 1949?
The Founders never intended to the judiciary to make social policy, and they make that clear repeatedly throughout the Federalist Papers and elsewhere. The function of the judiciary was to be a check against the legislative power, not as an instrument of social policy.
The function of the judiciary was to be a check against the legislative power, not as an instrument of social policy.
I don’t think they’re setting social policy. The social aspect is already there – gay people are already living together and adopting children. What they’re doing is denying a social policy that would allow Bible thumpers to tell us all what we can and cannot do.
Nobody’s going to make you marry a gay person, or to make your church perform these unions. What they’re doing is saying that if the government is going to have a civil institution of marriage, then it has to be avaliable to all couples. That has nothing to do with the religious institution of marriage.
“I believe that sweeping social changes that attempt to alter the very fabric of society are never a good thing”
And you still support what Americans are doing in Irak??? good for them, but not for you!
“The Founders never intended to the judiciary to make social policy, and they make that clear repeatedly throughout the Federalist Papers and elsewhere.”
No, the FEDERALIST founders never intended the judiciary to make social policy. And, let’s be honest, they aren’t–they’re eliminating an unconstitutional aspect of social policy. But keep in mind that the guys you’re thinking about are the same that did not want a Bill of Rights in the Constitution (because THAT never did anything for us, right?). The nationalists that fought for a Bill of Rights understood that having a deliniation of rights, including an ambiguous Amendment (10), woulod require a huge amount of judicial review. Citing a faction of the founders is nice, but I’m talking about the people that, you know, ratified the freaking Constitution, which includes more than just Madison and Jay.
Considering that Madison wrote most of the Constitution himself, his views are pretty damn authoritive, even if not monolithic. Even so, there is very little support that would prove the argument that the Founders wanted the courts to be an instrument of social policy. (And changing the historical definition of marriage is a major change to social policy in this country – especially when the states have already passed laws against gay marriage.)
“Considering that Madison wrote most of the Constitution himself, his views are pretty damn authoritive,”
And Ten Amendments later, people were willing to go along with that. Check that Tenth one a bit closer, and you’ll see some proof that a strong Judiciary is essential. You got another way to determine when people are exercising their nondeliniated rights without one?
And though this tangent has been fun, can you get back to pointing out why this wasn’t brought about by the President but by gay rights advocates, as you charge in the last graf of your post? As I recall, and maybe this is the sticking point, this debate over whether or not Bush should propose an Amendment was brought about by certain states refusing to acknowledge the right to privacy as guaranteed by the Constitution.
still, it’s high time the issue was brought up, and it’s well past time we accorded homosexuals the same rights as everyone else: pluralistic societies don’t get to be exclusionary and call themselves “democratic.” At least, I’d prefer if they didn’t do it with a straight face.
Does anyone know how the amendment proposes to define “man” and “woman”? Is it genitals or genetics?
There’s a considerable risk of great cost to couples that appear heterosexual but genetically, may be homosexual (androgen insensitivity syndrome can lead to a woman with an XY karotype.) Nobody seems to care about them, I guess.
I know quite a number of people who came off worse than before because of marriage. In fact, I know precious few people who did not end up on the losing end of marriage. That being the case, I cannot help but think that prohibiting gay marriages is in fact an act of protection of gays. While I think that this kind of extra care gays get to enjoy is really sweet and everything, I think that it is highly unfair that heterosexuals are not protected in the same way.
Rather than jumping at Bush for denying homosexuals the right to marry (should such a right exist), people should be upset about him not protecting heterosexuals from doing harm to each other by marrying.