Wall Street Journal, July 27, 2001
THE other day I attended what seemed an unusually disingenuous press conference, even by Washington's standards. The event was the unveiling, by a coalition of church and community groups called the Alliance for Marriage, of a proposed 28th Amendment to the Constitution. The "Federal Marriage Amendment" was soon to be introduced in Congress, the alliance announced. National Review (on the cover), a conservative bellwether, had already endorsed it.
What, exactly, would the amendment do? Speaker after speaker affirmed that its only effect would be to stop unelected judges from ramming homosexual marriage down the throats of an unwilling public. The intent was merely to require proponents of homosexual marriage to "go through the democratic process" rather than the courts. This seemed odd, because in full view, on an easel next to the podium, was displayed the text of the amendment, whose operative sentence read: "Marriage in the United States shall consist only of the union of a man and a woman."
You didn't have to be James Madison to see that the proposed amendment strips power not from judges but from states. For centuries, since colonial times, family law, including the power to set the terms and conditions of marriage, has been reserved to the states, presumably because this most domestic and intimate sphere is best overseen by institutions that are close to home. The marriage amendment would withdraw from states the power to permit same-sex marriage even if 100 percent of the voters and legislators of some state wanted to allow it.
One reason to revoke such a core state power might be to prevent a single state from effectively adopting same-sex marriage for the whole country. In 1996, however, Congress and President Clinton foreclosed that possibility by enacting the Defense of Marriage Act, which holds that no state need recognize a same-sex marriage performed or sanctioned in any other state. Meanwhile, three dozen states have legislatively passed pre-emptive bans on same-sex marriage. The country is thus almost 75 percent of the way to a national ban.
Under those circumstances, there can be only one reason for a constitutional amendment putting gay marriage out of the reach of not just state judges but of states. The sponsors must be worried that eventually some state's legislators or voters, acting in the old-fashioned democratic way, will decide that same-sex marriage suits their state's temperament or helps solve their state's problems.
That conservatives would contemplate so striking a repudiation of federalism is a sign of the panic that same-sex marriage inspires on the right. As people usually do when they act in a panic, conservatives are making a mistake. Even if you don't believe, as I do, that same-sex marriage is good because it is just and humane, the attempt to pre-empt federalism is bad policy from a conservative point of view.
For there is a compelling and deeply conservative case for thinking that homosexual marriage, far from being the end of civilization as we know it, would be a win-win-win proposition: good for homosexuals, good for heterosexuals, and good for marriage itself. The reason is one that conservatives have long understood: Love and marriage go together. Marriage transmutes love into commitment. Love is often fleeting and crazy-making. Marriage is lasting and stabilizing. For all the troubles that divorce, fatherlessness and illegitimacy have brought, marriage remains far and away the most durable bond that two caring people can forge.
Though some homosexuals have children, even childless homosexuals--in fact, especially childless homosexuals--need and benefit from the care of, and promise to care for, another, till death do you part. Society stands to benefit when all people, including gay people, have this care and make this commitment.
Before rushing to ban same-sex marriage, conservatives ought to remember that the real-world alternative is not the status quo or the status quo minus 30 years. Same-sex unions, however viewed by law, are real and increasingly honored by the growing number of Americans who have gay friends and family members. I take my partner, Michael, to the company Christmas party every year, and my colleagues treat him as my spouse. Because governments, businesses, religions and ordinary people are increasingly supportive of these unions, the likely result of a national ban on same-sex marriage would be the profusion of partnership programs and other versions of "marriage lite"--many of which, majoritarian politics being what it is, will inevitably be opened to heterosexuals as well as homosexuals.
Some left-wing gay activists favor the establishment of diverse alternatives to marriage as a way to weaken the real thing, which they regard as rigid and oppressive. It is odd for conservatives to try to help them. Marriage, like voting and property ownership and other encompassing civic institutions, is strongest when it is universal and unique, without carve-outs or special cases. It works best when society and law send a clear message that marriage is for everyone--gay and straight alike--and that the only way to secure the benefits and recognition of marriage is to get married.
The retort, of course, is that unyoking marriage from its traditional male-female definition will destroy or severely weaken it. But this is an empirical proposition, and there is reason to doubt it. Opponents of same-sex marriage have done a poor job of explaining why the health of heterosexual marriage depends on the exclusion of a small number of homosexuals. Moreover, predictions that homosexual integration would wreck civic communities and public institutions have a perfect record: They are always wrong. When same-sex couples started holding hands on the street and buying houses in the suburbs, neighborhoods did not turn into Sodoms and otherwise solid families did not collapse. The British military, after protesting for years that morale would be ruined by open homosexuals, has instead found their admission to be a nonevent. Integration of open homosexuals into workplaces has not replaced pinstripe suits with stud collars or ruined the collegial spirit in offices across the country.
Like it or not, homosexuality exists and is not going away. The question is how to ensure that it is pro-social rather than antisocial. I believe that marriage, the greatest civilizing institution ever devised, is the answer. I could be wrong; but the broader point, in any case, is that same-sex marriage bears potential benefits as well as risks. The way to find out is to try, which is what federalism is for.
Thanks to America's federalist structure and the existence of the Defense of Marriage Act, the United States is uniquely positioned among all the world's countries to get same-sex marriage right, by neither banning it pre-emptively nor imposing it nationally. Instead, same-sex marriage could be tried in a few places where people feel comfortable with it and believe it would work. Letting states go their separate ways, moreover, is the way to avert culture wars, as the misguided nationalization of abortion law so unpleasantly and frequently reminds us.
Same-sex marriage should not be a federal issue. Conservatives, of all people, should not be attempting to make it one. They have been trumpeting the virtues of federalism for years. Here is a particularly compelling opportunity to heed their own wisdom.