Civil Unions, Gay Marriage, And Roe v. Wade

Mickey Kaus staked out the middle ground a while back:

I think gay marriage is a perfectly reasonable institution. But the courts did not force Massachusetts to make a democratic decision on this matter. Massachusetts had made a democratic decision--it had decided to do nothing. The court is forcing the state's democracy to make a different decision, under the threat of having its action declared unconstitutional if its not the action the court likes. ... It's honest to defend this as a frank anti-majoritarian "rights" case. It's disingenuous to pretend the court has somehow enforcing a democratic will that actual, elected representatives have failed to discern. If gay marriage is so damn popular, why don't people like Sullivan do the easy thing and rally Massachusetts voters to get the law changed? That strategy would avoid the toxic civic consequence of Roe, namely that the enraged and embittered losers (the pro-lifers) weren't forced to acknowledge that their views were not shared by most of their fellow citizens, while the smug winners weren't forced to attempt to convince anyone in particular. Both sides lost an incentive not to be shrill--shrillnes turns off middle-road voters and makes compromise more difficult, but who cared about that once voters and democratic compromises had been largely taken out of the equation?

This suggests a matrix balancing the outcome with the process. Folks committed to the rights argument will seize any strategem and accept any useful court ruling. And I suppose there are people on the other side so deeply opposed to gay mariage (and who sense the tide of public opinion drifting away from them) that any tactic to ban gay marriage will seem reasonable.

My impression is that most if us would like to see a balancing of process and outcome. Gay marriage by judicial fiat in the absence of popular support strikes me as a terrible idea. OTOH, a constitutional amendment to ban it seems like needless tinkering. And of course, there is the "civil unions" compromise lurking about. Let the great unwashed have their say, after both sides have accepted the challenge of making their case, and let's see what happens.

On that point, the pro-gay marriage side has certainly improved their marketing pitch. As I recall, the original impetus for gay marriage came out of the 1980's AIDS crisis, where marriage was seen as a way to obtain health care benefits and retain residency in rent-controlled apartments. This "here's what's in it for me" message did not resonate with the wider public. However, the current message is much more sympathetic - love, committment, and hospital visitation rights. Well done.

MORE: David Brooks presented the conservative case for gay marriage a while back; the InstaPundit on the turning of the tide.

Now, a semi-serious question - does anyone really think the votes are there to amend the Constitution? I am not even sure that the FMA can get past two thirds of Congress, let alone thirty seven states, although I suppose Massachusetts will test that. And conversely, I doubt that a bill authorizing gay marriage could emerge from Congress either.

STILL MORE: I am not alone in being confused - Craggy Candidate Kerry supports something, but strongly opposes something else. Or maybe it is the opposite. Folks in Boston are noticing, too.

IT"S NOT A CIVIL RIGHTS ISSUE: It is a wedge issue. I feel their pain:

The three major associations of Greater Boston's black clergy, exercising their considerable influence within the minority community and asserting moral authority on civil rights matters, have shaken up the debate over same-sex marriage with their insistence that the quest by gays and lesbians for marriage licenses is not a civil rights issue.

The Black Ministerial Alliance, the Boston Ten Point Coalition, and the Cambridge Black Pastors Conference issued a joint statement this weekend opposing gay marriage.

Comments

[Pouncer]

The "Constitutional Amendment" thing is a ploy.

Recall the issue of "flag burning" a decade ago? The Supreme Court ruled that flag burners were constitutionally protected. (This because Kenneth Starr, solicitor general arguing FOR the federal statute against flag burning, wasn't competent enough to convince judges like Scalia who were practically BEGGING to be convinced. (His track record on this "vital" conservative issue makes one wonder why he was selected to persec-- prosecute Clinton.) )

Anyhow, the fall-out from the USSC decision with Republicans under Bob Dole was to push for a constitutional amendment. The effort failed to amend the constitution, but it sure made Dole popular with the Vast Right Wing.

The gimmick now is to make enough noise about the marriage amendment to pump up heroes of both the left and right -- it's not about actually making a change. Sadly, I don't see any current players able to handle the issue as deftly as Dole. (Again, not because he WON, but because he advanced himself in the effort. Kerry and Bush each seem poised to lose by making any effort in any direction...)

Hmmm. Maybe that's the point? Maybe the whole thing is being arranged by Hillary?

[Mark Barton]

"Gay marriage by judicial fiat in the absence of popular support strikes me as a terrible idea. "

But judicial fiat is on this and similar issues is what the people voted for when they added the ERA clause to the Massachusetts constitution in 1976. The whole point of an ERA is that some sorts of discrimination are two tempting to be left in the hands of the people and should be renounced wholesale, except for narrow exceptions allowed by the Supreme Judicial Court after "strict judicial scrutiny". And now that a particularly tempting bit of discrimination has been disallowed, they're complaining. We should be as unmoved as by a cigarette addict who's pleading for his matches back after previously begging us to hide them for him.