Bush's backfire
Twelve years ago, the far right's culture war helped defeat a President Bush -- and it's about to happen again.
By Richard J. Rosendall
March 2, 2004 | After calling for a constitutional amendment against same-sex marriage without once mentioning the dreaded words "gay" or "lesbian," President George W. Bush ended on a conciliatory note: "We should also conduct this difficult debate in a manner worthy of our country, without bitterness or anger. In all that lies ahead, let us match strong convictions with kindness and goodwill and decency." This reminds me of Dame Edna Everage, who, after saying something horribly cruel about her bridesmaid Madge Allsop, habitually adds, "I mean that in a nurturing and caring way."
The president's announcement made official what was long anticipated: The culture war is now at center stage in the 2004 presidential election. To justify his decision, the president cited the recent Massachusetts Supreme Judicial Court ruling that nothing short of marriage would do for same-sex couples, and an order by San Francisco Mayor Gavin Newsom to the county clerk to issue marriage licenses to gay couples. But while these events may have influenced the timing of the president's announcement, the push for the Federal Marriage Amendment (FMA) began long before. Leaders of Bush's right-wing political base had already been assured of the president's support on the issue.
Meanwhile, Sen. John Kerry, D-Mass., the Democratic front-runner as I write this just prior to Super Tuesday, is once again displaying his penchant for seizing both sides of every issue. On the one hand, he opposes FMA just as he voted against the Defense of Marriage Act (DOMA) in 1996. On the other hand, he supports an amendment to the Massachusetts state Constitution as long as it allows for civil unions. Kerry (or rival Sen. John Edwards, D-N.C., who also opposes both gay marriage and FMA) does have fair cause for wanting to thread this needle, since Karl Rove can be expected to do with gay weddings in 2004 what Lee Atwater did with flags in 1988. Or, as one friend of mine put it, Willie Horton is back, and he's gay.
Anti-gay conservatives have had a field day. The stories predicting doom for the Democrats practically write themselves: Massachusetts liberals, a Boston convention, a Boston candidate -- can you say four more years? Curiously, though, the president and Republican congressional leaders had until recently been in no hurry about an amendment. Conservatives are themselves divided on whether an amendment is needed and what it should say. Not only are prominent conservative voices such as columnist George F. Will and former Rep. Bob Barr, R-Ga., opposed to FMA for reasons of federalism, conservative columnist David Brooks strongly supports gay marriage. In Massachusetts, the state constitutional convention recessed for a month after two days of debate and close votes on variously worded proposals. Prior to the president's Feb. 24 announcement, and despite the media frenzy, lawmakers had paused.
With the election eight months away, a closely divided electorate and a Republican president who has the Democrats motivated like nothing in recent memory, that initial caution was warranted. Considering how the president exasperated his supporters on the religious right with his months of hedging on FMA, it would appear he doesn't need a reminder that the culture war did his father's reelection effort no good 12 years ago.
Let's step back, as the president said to Tim Russert. The religious right's anti-gay obsession discredits conservatism and risks alienating the GOP from the political center that it needs in order to govern. There is not enough space in one essay to address all the arguments and shibboleths that the right wing hurls at gays; that would take an entire book. Here I will merely survey some of the highlights (or lowlights), and offer some examples.
"Or the legal incidents thereof"
The Federal Marriage Amendment, introduced by Rep. Marilyn Musgrave, R-Colo., states: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."
Kindly notice what this proposed amendment leaves out. While purporting to be aimed at the defense of marriage, it entirely overlooks every single problem associated with heterosexual marriage. The amendment does nothing to stop no-fault divorce, or indeed prohibit divorce altogether, nor does it recriminalize adultery. Its aim is not to protect straight families, but only to attack gay ones.
Proponents of the amendment cannot even keep their stories straight. Some insist that the amendment would not prohibit states from passing civil union laws, while others want to ensure that all such "marriage lite" provisions, by whatever name, are barred nationwide. Under the Musgrave amendment, it is hard to see how any civil union could withstand a court challenge. If no state law can be construed to require conferring the legal incidents of marriage upon gay couples (who are barred by the amendment from marrying), civil union laws would be rendered null and void, since the legal incidents of marriage are precisely what civil unions are designed to provide.
Alternatives to the Musgrave wording are now emerging. The struggle that will likely ensue over competing texts will work against the president's call for prompt action. One goal unites the rival camps: A desire to stop any more smiling gay couples from emerging with marriage certificates from city halls across the country.
Interpretation and "judicial tyranny"
Conservatives have made much of the distinction between judges who interpret law and judges who "legislate from the bench." To listen to them, you would think that the judicial process was purely mechanical. As University of Michigan law student Steve Sanders describes this notion: "You take the relevant inputs (facts, precedents, statutes, whatever), 'apply' some law, and out pops objective, principled justice. A few more advances in Westlaw and we might not even need human judges." As Sanders observes, "This provides cover for conservatives to appoint their own judges -- many of whom are committed not to some tedious process of cranking the legal machinery, but rather to making law that reflects their policy preferences."
What the cries of "judicial tyranny" conceal is the fact that people have legitimate differences over interpretations of constitutional principles, the application of laws, and concepts of justice. Calling a judge "activist" is not the same as refuting his legal argument. As Sanders, who maintains the Web site Gay/Lesbian Politics and Law, observes of the recent Massachusetts SJC ruling on same-sex marriage, "I have yet to hear a conservative political or legal commentator engage the history, findings, or logic of the actual Massachusetts opinion."
Why is it judicial tyranny when a court ruling doesn't go your way? Was Brown vs. Board of Education a case of judicial tyranny? How about Griswold vs. Connecticut, the landmark ruling on contraception? I can understand the passion about Roe vs. Wade, but how can a ruling like Lawrence vs. Texas (overturning sodomy laws), which harms no one and lifts people up, be called tyranny? Why should one group's fundamental rights be subject to a majority vote, when everyone else takes those rights for granted? I realize that there are sharply different views about what rights are fundamental -- different interpretations of the due process and equal protection clauses, for example -- but that's just my point: One side does not hold a monopoly. Ideological differences do not improve their pedigree by being dressed up as matters of judicial philosophy. The legal issues involved in the gay marriage dispute are complex, and must be carefully examined rather than bypassed with a hasty amendment that seeks to cut the Gordian knot.
Next page: "When the sacred needs politicians to defend it, the sacred is in big trouble"