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The Definite Article
by Terry Graves
07 April 2004Pink Triangle

The solution to the gay marriage crisis is already in the Constitution: Article III, Section 2. 


False Dichotomy

As Americans ever so slowly become aware that homosexual marriage may somehow become inserted into American law, much of what has been said and written about that possibility is false. (This of course can be said about just about any topic, any time.) Nothing is more demonstrably false than the emergent dichotomy that either the various federal and state laws that prohibit homosexual marriage will be found constitutional, or they will not, and only an amendment can stop it. The past few decades we Americans have been conditioned to overlook a third possibility, one that is viable and spelled out in the Constitution itself. This is all the more surprising given that, even this early, there are more than two bodies of opinion. 

First, a note about diction: as gay replaced homosexual in polite (or at least politically correct) usage, same-sex has lately been trotted out to preface marriage, perhaps because gaiety, rather than happiness, is something not often associated with marriage. As same-sex means, literally, the same as homosexual, there is no need for yet another euphemism.

To summarize the main clusters of opinion, from yea to nay:

-- any restriction on homosexual marriage is morally wrong and unconstitutional;

-- since homosexual marriage is being touted as a “civil right,” then by definition it must be a good thing;

-- an agnosticism well characterized by Senator John Kerry, whose position CNN quoted as “… he supports civil unions and equal protection for gays and lesbians but… he opposes marriage for them. He also said he believes the matter should be an issue for the states.”

-- no strong opinion either way or total ignorance of the issue. These are likely one and the same. At present most people are perched on the fence or, rather, are but do not realize that there even is such a fence for them to be toppled from;

-- an opposition summarized by President Bush in calling for an amendment to the Constitution to prevent what he called “activist courts” from imposing homosexual marriage on the entire country;

-- and those who oppose homosexual marriage out of moral or religious beliefs.

Now, the first and last views are irreconcilable; the first three will naturally tend to coalesce, as will the last two. The fourth, those still ignorant of the possibility of homosexual marriage, will never know what hit them. There are major problems with each of these bodies of opinion, and by reviewing those problems we can begin to see the only way out.

An editorial in the San Francisco Chronicle, written in response to President Bush’s call for an amendment, manages to exemplify so many of the difficulties with the first two groups – a considerable achievement – that it is worth quoting in toto:

Marriage Amendment Objectionable
President Bush made if official Tuesday: He wants to add an element of discrimination to the U.S. Constitution.

Bush announced his support for a constitutional amendment to ban same-sex marriage because “a few judges and local authorities” are undermining a "fundamental institution of civilization.”

Nonsense. The real reason behind this renewed itch for the amendment is the prospect that laws that discriminate against same-sex marriage are not sustainable under the equal protection provisions of the 14th Amendment. At some point, perhaps soon, the issue will reach the U.S. Supreme Court – and the reasoning it used to strike down a Texas sodomy law last year may similarly invalidate laws that deny gays and lesbians the full rights and responsibilities of marriage. This nation has just begun to confront the many enduring inequities faced by same-sex couples.

The president's announcement is likely to elevate gay marriage as an issue in the 2004 election. The purpose of constitutional amendments should be to address the oversights – or, in some cases, hypocrisies and contradictions – of our founding fathers. The threshold for a constitutional amendment is substantial, and properly so. It would require approval of two-thirds of the U.S House and Senate, and ratification by 38 states. Even Americans who are uneasy about the notion of same-sex marriage should object to this assault on the Constitution.

It is not mere coincidence that Americans ratified Amendment XIV only three years after the Civil War and while the nation was in that bitter period called Reconstruction. The equal-protection clause has nothing to do with marriage and is the section of XIV clearly aimed at protecting freed slaves. The Chronicle itself reserves amendment for “oversights… of our founding fathers.” (The phrase “founding fathers” sounds so, uh, non-inclusive, especially in context.) As for the original Constitution and Bill of Rights, it is, well, nonsense to believe that their well-educated, if non-inclusive, authors could have overlooked homosexuality or other alternatives to heterosexual marriage – some of them had even lived in Paris! Anyway, if equal protection is now to be applied as broadly as the Chronicle and others seem to believe, then how can affirmative action and its quotas survive? Age discrimination for Social Security retirement, driver’s licenses, or prohibition of the death penalty for only minors? Any minimum age of consent for sexual relations or marriage itself? Or denial of guns but not the vote to felons? Or, most obviously, the graduated income tax? Or even a flat tax, since that yields unequal tax burdens? If the equal-protection mantra is not to be repeated in such cases and countless others, why not? The answer is simple: like other clauses that have attracted a cult following, equal protection (that Jim Jones of cult clauses) is less constitutional bedrock than a sleeping bag left rolled up behind the door and unfurled only to accommodate some favored guest.

Or may not be, depending on who hears a given case. In a given week. Let us presume that the writer of the Chronicle editorial considers himself to be well-educated, yet he acknowledges this uncertainty about the interpretation of that section of Amendment XIV, all of 80 words long, with his use of “prospect” and “may.” Just as important is the writer’s use of the present tense in “…laws that discriminate against same-sex marriage are not sustainable under the equal protection provision…” He does not, cannot, pretend that even a dozen years ago such laws were not sustainable. Amendment XIV has not changed, and voters in some states have even dared reinforce the laws against homosexual marriage, through either legislation or referendum.

“Ah, but times have changed,” or a similar formulation might be the response of an equal protection groupie. In an interesting discussion available on the Web, Associate Justice Scalia was quoted as saying: “No fewer than three of the justices with whom I have served have maintained that the death penalty is unconstitutional even though its use is explicitly contemplated in the Constitution.” (No wonder the Chronicle was uncertain about interpretation!)) A riposte to Scalia came from another panelist, Erwin Chermerinsky, Sydney M. Irmas Professor of Public Interest Law, Legal Ethics and Political Science, University of Southern California. (That USC believes the “public interest” is so easily ascertained as to be reduced to law is itself disquieting.) Professor Chermerinsky countered by saying, “… that the framers intended that [capital punishment] is right, but… [t]he Supreme Court repeatedly has said, not just now but for decades, that what's cruel and unusual punishment is determined by evolving standards of decency.” That is, Professor Chermerinsky used one principle that appears nowhere in the Constitution, and was invented by the Court, to justify its application of that principle. It is well to note, too, that in the same discussion Chermerinsky encapsulates, and dismisses, the United States of 1787 as a “slave society,” doubtless why he so readily dismisses the text of the Constitution, a product of that society.

Because such living-Constitution proponents think it must reflect the changing conditions and “standards of decency,” it would seem to follow that the citizenry should reflect on their, the citizens’, own conditions and standards and vote accordingly whether to amend. But for the proponents voter has become the v-word. An elder statesman still revered in some quarters had this to say about such elitism: “Politics is an act of faith; you have to show some kind of confidence in the intellectual and moral capacity of the public.” (But, as will be seen later, George McGovern was not consistent in this belief.) Instead of the citizens and their votes, the proponents rely exclusively on judicial fiat – which is, alas, no longer the judge’s little Italian car. A reasonable inference from this reliance on court decisions, to the exclusion of legislation, let alone referendum, is that the only conditions and “standards of decency” that have changed are those the proponents encounter in the more exclusive Georgetown salons. (Given the influence of Beltway social life on public policy, these salons and other parties should be considered “public accommodations,” where any citizen can could just drop in and buttonhole a judge or a senator.)

Even so, such drive-by legislation by the judiciary might conceivably, occasionally, be justified if there were not ways to amend the Constitution, or if ever we encounter a genuine novelty. But the Constitution itself contains provisions for its amendment, and, again, homosexuality and heterosexual marriage certainly were not novelties when Amendment XIV was ratified. Perhaps this contempt for the amendment process is why the Chronicle managed to get it wrong, and in an editorial putatively about the Constitution, yet. That is, Congress need not initiate or approve a proposed amendment; two-thirds of the legislatures can initiate one through a convention. And it was the founding fathers, those dead white male slave owners whose work we are not supposed to tamper with, who were themselves the busiest amenders.

The Chronicle tries to leave the impression, too, that the amendment process has been reserved for weighty, not just any, “oversights.” To demonstrate that this is not so, we need look no further back than the most recent amendment, in 1992, when Amendment XXVII limited pay raises for Representatives – not exactly the stuff of high drama. In any case, marriage is far more crucial to our society than pay raises or the quartering of soldiers. (By the way, in the Constitution the articles and amendments are denoted by Roman, not Arabic numerals, which practice the Chronicle’s editorial writer might have noticed had he ever read it.)

The phrase “common law” appears in the Constitution only in the context of civil suits, so this over-reliance on precedent and common law instead of the Constitution’s text is itself no more in that document than is, say, the phrase “innocent until proven guilty.” While we Americans were writing and ratifying first the Articles of Confederation and then our Constitution, Britain had an unwritten constitution, and our attempts to commit ours to writing must be seen as a significant break with English common law. In his How the Scots Invented the Modern World, Arthur Herman helped explain why: the Scottish judicial system’s emphasized Roman law, what the Scots called “written reason,” over the common law of the English, and our Constitution’s principal author, James Madison, was strongly influenced by Scottish thinkers such as Frances Hutcheson, Lord Kames, Adam Smith, and David Hume. As a conscious departure from reliance on common law, the Constitution is a document whose relevant text should outweigh precedents and limit future decisions. Why, besides all the trouble we have gone to writing and maintaining it? The text – and this cannot be overemphasized – is what the citizens last had the opportunity to vote on, based on their understanding of its meaning at that time, not on any bizarre paranoia about how some future judge might use it. While a law’s interpretations may fall in and out of fashion, its meaning should not. A poignant example: if Americans had imagined in 1868 that Amendment XIV implied homosexual marriage, it never would have been ratified, and freed slaves would not have enjoyed equal protection. For the Chronicle to trivialize the ratification of Amendment XIV and then to discourage future amendments is both hypocritical and profoundly anti-democratic. It is also special pleading: the Chronicle doubtless supported the Equal Rights Amendment, and were the equal protection clause all that newspaper expects from it now, then the ERA would be superfluous.

Perhaps the Chronicle and those who agree with it should consider that the very judicial adventurism they now encourage was one reason many were afraid to support the ERA, out of a sensible prudence about what damage the federal courts might do with such a vague collection of words, that it would be rather like handing a butcher knife to a baby (or would denying the baby a butcher knife be impermissible age discrimination?). Divorced from the original intent as understood by those who voted on it, any provision can be made to mean anything. Not that a judge will need appear so cavalier about the Constitution: he can season the expression of his private revelation with thought bites such as “relic of the past,” “subvert the court’s legitimacy”, “World Court,” “emanations,” “persistent prejudice,” “evolving standards of decency” “UN Charter,” and maybe the Code of Hammurabi, before adding as an afterthought something that sounds more or less constitutional, like “Amendment III’s prohibition of the drawing and quartering of soldiers.” George Carlin, in character as a newscaster for his fictional radio station WINO (“Wonderful Wino!”), once reported that scientists had discovered a new number, between eight and nine. The new number was, Carlin continued, called bleen. “Relic of the past,” “emanations,” and all the rest: they are found only in Article Bleen.

The Chronicle’s editorial is a perfect treasure in another place: near its beginning it stated that President Bush “… wants to add an element of discrimination to the U.S. Constitution.” Piling it on, USC law professor Susan Estrich said Bush’s proposal is the “… first-ever exclusionary amendment.” Or not: the hallowed Amendment XIV itself excludes and discriminates against some (but not all) former Confederates. And then there is XXII, which excludes anyone serving more than two terms. It is remarkable that Professor Estrich, a Democratic Party activist who managed Dukakis’ 1988 presidential campaign, managed to overlook XXII, the anti-FDR amendment. Every law discriminates in some way, right from wrong, sheep from goats. That is its purpose, so that men will not use violence to sort things out for themselves.

Then, discrimination is one of those words, like family values, the environment, civil rights, victim, children, and those new compounds, healthcare and womansrighttochoose, that cause our minds to slip out of gear and coast backward, engine revving, into a fever swamp. For example, writing in her February 22 column about San Francisco’s mayor issuing marriage licenses to homosexual couples, the Boston Globe’s Ellen Goodman gushed like a bridesmaid, “I don’t care if the same same-sex nuptials get nipped in the bud. I’m still going to send flowers from the Bay State to the Bay area.” Also in full spate, this time of venom: because the President called for a constitutional amendment to protect the only form of marriage contemplated in the Western world for millennia, Dahlia Lithwick, a Slate senior editor, in its February 10 edition called Bush a “fool” and accused him of “bigotry.” This sort of casual slander has become commonplace, because for decades support of civil rights has been eminently respectable, so much so that merely labeling something as a “civil right” is enough for many people to support it. Similarly, they will revile “discrimination,” and those accused of it are guilty until proven innocent. (If then. It is ironic that only in the name of civil rights is it possible to be found not guilty of an act in one court, then retried and convicted for the same act, under a different name, in another court. The prohibition against double jeopardy suffers from merely being listed in the Bill of Rights rather than belatedly discovered lurking in a penumbra or some other, darker shadow.)

In another context, Lee Jones, Associate Professor of Psychiatry at the UCSF, explained the risks inherent in such conditioned reflexes: “The problem with bigotry is that you don't stop and think. The problem with absolute acceptance is that you also stop thinking and questioning." It is fitting that (as reported by the AP on March 10) in opposing such an amendment NAACP chairman Julian Bond provided the pithiest example of such uncritical thinking: “… discrimination is wrong no matter who the victim is.” One has to wonder why Mr. Bond discriminates between, say, bank tellers and bank robbers, withholds a butcher knife from a baby, or selects one necktie and not another. The packaging of something as a “civil right” – by co-opting the jargon, personalities, organizations, presumptions, and odor of sanctity left over from the Movement’s glory years – does not mean that it is a right, civil or otherwise, or even should be. It would help us all, especially Mr. Bond, to note the difference between what someone believes to be a moral or ethical right, and a right that has been voted into law: a civil right. Others have noted the difference: the same AP article quoted Boston’s The Rev. Eugene Rivers as saying the black community cannot allow gay marriage supporters to “pimp the black civil rights struggle and legacy.” Sadly, when it comes to morals and ethics, if all you have are civil rights, then everything you dislike looks like a civil wrong.

False Bottoms

Just why does Senator John Kerry oppose homosexual marriage? What does this would-be second black President think it pimps? His official web site does not mention the issue at all. Does he think it is unsafe at any speed? Too expensive? Causes obesity in lab rats? Nor does he explain how civil union differs from marriage, if indeed they represent anything more than a distinction without a difference. Such distinctions will not long survive; the Massachusetts Supreme Court will not be the last court to insist on homosexual marriage, not civil union. That which once dared not speak its name now dares not be different. Nonconformity has lost its edge and become timid and gentrified, insisting that it be not only tolerated and legally protected, but respected and socially accepted, as well.  

So Senator Kerry’s apparent opposition sounds much like the hoary formulation, “I am personally opposed to abortion but…” Perhaps Kerry hopes that, as President Clinton said about abortion, civil unions will be “safe, legal, and rare.” (The question remains for Clinton, at least: if abortions are such a basic human right, why should they be rare?) Kerry believes homosexual marriage should be an “issue for the states.” This part of his platform is really a false bottom, for leaving it to the states is really a code phrase (nudge, nudge) for leaving it to the federal courts (wink, wink). He or at least his handlers know the states are the soft underbelly of American government, vulnerable to being bribed with so-called federal money from Congress and to bullying by the Executive and, most certainly, by the federal courts. It is plausible that Kerry’s handlers have nudged and winked the word down the line: “Ignore what our guy says about opposing homosexual marriage and heed instead what he says about the cour--, I mean the states.”

Discussion of Senator Kerry’s beliefs naturally brings us again to those with no strong opinion. Decades ago, in a similar context, George McGovern said that the Constitution means what the Supreme Court says it means. Most Americans now accept that, consciously or not. Yet the Constitution need not be merely what the Supreme Court said it is this week. It is only 7620 words long, in English that is straightforward except for some longish sentences. The Court is neither Moses descending Mount Sinai nor the oracle at Delphi. That the Justices cannot be trusted to interpret their 7620-word god is shown by the example of capital punishment discussed earlier. Nevertheless they will interpret, and most Americans will be lulled into a coma, believing that the Supremes’ latest pronouncement to be as irresistible as the change in seasons.

Sacred Scrolls

Among those who apparently believe this are President Bush and the many others who think, first and last, of a constitutional amendment whenever the federal courts go on a bender. At first blush, who can blame them? The Left may safely rely on those courts, not on any of the methods of amendment, to g