February 10, 2004,
Has the Massachusetts Supreme Judicial Court just spoiled John Kerry's chance to be president? Quite possibly. It's difficult to know exactly how the politics of gay marriage will play out during the campaign. Yet there's every prospect that this issue will weigh heavily against John Kerry and Democratic congressional candidates this fall.
It hasn't quite dawned on many Americans just how big this issue could be. Gay marriage is an awkward and polarizing subject. Neither the public, politicians, nor the media are eager to take it up. Yet there's a dynamic built into this issue that makes it likely to have an explosive impact on the coming campaign.
What will happen after May 17, when Massachusetts begins to issue marriage licenses to same-sex couples? Hundreds, even thousands, of gay couples will pour into Massachusetts, get married, return to their states, and begin to agitate for recognition of their marriages. This huge media event will play out continuously for two months before the Democratic National Convention in Boston on July 26. All this will cement the connection in the public mind between gay marriage, Massachusetts liberals, John Kerry, activist judges, and the Democratic party.
But the trouble for Kerry and the Democrats doesn't end there. The media firestorm over gay marriage is going to continue through the entire campaign (and beyond). This country has never confronted a situation in which the marriages of a substantial body of citizens go unrecognized in large parts of the country. What happens if someone in a same-sex marriage is injured in a non-recognizing state? Will his spouse get hospital visitation rights? What if a marriage dissolves, and property in a non-recognizing state has to be divided? Complications will proliferate, and each new permutation will mean more news stories and more pleas for national recognition.
BAD TIMINGAlthough gay-marriage advocates will undoubtedly litigate aggressively to nationalize their Massachusetts victory, it is likely that the politically savvy managers of the gay-marriage movement will try to delay formal legal challenges until after the presidential campaign. They may or may not succeed. Couples could quickly launch challenges of their own to federal and state DOMAs (Defense of Marriage Acts). In any case, there will surely be a continuous stream of news stories about gay marriage, featuring pleas by newly married couples for recognition in their home states.
Meantime, as events in Massachusetts spill over into the country as a whole, a groundswell of support for the Federal Marriage Amendment will place tremendous pressure on candidates at all levels to declare themselves on gay marriage. This will be particularly so if the president endorses a version of the Federal Marriage Amendment, as now seems likely. Constitutional amendments must be approved by a two-thirds vote of Congress and three quarters of the state legislatures. That means every political candidate, from the state level up, will be asked to take a stand.
We're accustomed to politicians handing off polarizing social issues like abortion and affirmative action to the courts. But gay marriage is going to become a live legislative issue right away. We see this most clearly in Massachusetts, where the state legislature meets this week in joint session to consider an amendment to the state's constitution defining marriage as the union of a man and a woman. The same question is likely to be put before a great many other state legislatures.
Despite the fact that three quarters of the states have legislated against gay marriage, in only a few cases (Alaska, Hawaii, Nebraska, Nevada) have states done so through constitutional amendments. But state DOMAs are all vulnerable to constitutional challenges of the Massachusetts type. Every state constitution has a clause guaranteeing citizens equal benefits or rights. So every state supreme court could use Goodridge to read a right to gay marriage into its constitution, thus overriding a state-level Defense of Marriage Act. So even many states with junior DOMAs will attempt to amend their constitutions. In fact, a number of states are considering amendments right now.
So the gay-marriage issue is going to be kept alive, not only by dramatic media coverage of married gay couples flooding back from Massachusetts to every non-recognizing state in the union, and not only by a national campaign for the Federal Marriage Amendment, but also by a continuing series of state-level debates over junior DOMAs, state constitutional amendments, and the role of state courts. All this means that the gay-marriage story is going to be pervasive.
The public is not going to like this. Precisely because gay marriage is such an awkward and polarizing subject, we'll see a strong reaction against the Massachusetts liberals and activist judges who've forced this conflict on an unwilling country. And moves to pass constitutional amendments in state after state are going to make the idea of amending the federal constitution seem a lot less strange.
It's a good thing, too. That's because, even if every state besides Massachusetts were to pass a constitutional amendment defining marriage as the union of a man and a woman, gay marriage could still be nationalized by a decision of the United States Supreme Court. And it's a certainty that a challenge to the federal Defense of Marriage Act will work its way up to the U.S. Supreme Court sometime in the next few years.
Given the sweeping nature of the Supreme Court's recent Lawrence ruling on sodomy, and the roles of Justices Kennedy and O'Connor in that decision, national imposition of gay marriage by judicial fiat is very real possibility. There are any number of possible grounds for such a decision. A case based on an equal protection or substantive due process claim is even more likely to nationalize gay marriage than a case based on the Full Faith and Credit clause.
SCOTUS VS. FMAIf the Court declines to impose gay marriage on the country as a whole, the confusion will continue. The only way the Court can impose uniformity and stem the conflict is to nationalize gay marriage. Only passage of the Federal Marriage Amendment can impose uniformity in the other direction. So it's going to be a race between the Supreme Court and the amendment process to resolve the issue nationally one way or the other. Until then, our culture war over gay marriage will be at fever pitch.
The White House has given clear signals that the president is going to endorse the Federal Marriage Amendment. The president may not follow through, but it's likely that he will. There is no doubt that presidential backing for the Federal Marriage Amendment and the enthusiasm of religious conservatives for the enterprise threatens to turn off socially moderate swing voters. If the president or his supporters conduct this battle in a mean-spirited way, they will harm themselves greatly. Yet the president is keenly aware of this problem, and will likely handle the issue with decency and respect for all.
Swing voters generally oppose gay marriage, yet favor more limited benefits for same-sex couples. The version of the Federal Marriage Amendment the president seems ready to endorse would define marriage as the union of a man and woman, and would ban the judicial imposition of gay marriage. But the version of the FMA likely to be endorsed by the president would also leave decisions on civil unions or more limited partnership benefits to the states. This is exactly the position of most swing voters. And while these voters would much rather avoid amending the federal constitution if at all possible, the continuous conflict set off the Massachusetts decision is slowly but surely going to create a conviction that, in the absence of a federal amendment, gay marriage is sure to be nationalized by the courts.
So while a presidential endorsement of the Federal Marriage Amendment is not certain, it is probable. And while an endorsement is surely not free of political risk, it is relatively unlikely to do serious political damage to the president.
THE NOT-SO-GAY CANDIDATEJohn Kerry, on the other hand, is greatly endangered by the gay-marriage issue. And the problem goes well beyond the powerful association soon to be set up in the public mind between gay marriage, Massachusetts liberalism, activist judges, the Democratic party, and John Kerry.
For starters, John Kerry was one of only 14 senators who voted against the federal Defense of Marriage Act in 1996. Although Senator Kerry now claims to be against gay marriage, he is going to have a very tough time explaining that vote. In effect, a vote against DOMA is a vote to nationalize gay marriage. Kerry refused to take even the most minimal steps to prevent four activist Massachusetts judges from imposing gay marriage on the country. That is going to hurt him.
The deeper problem for Kerry is that the gay-marriage issue could turn into a kind of tipping point on public perceptions of his record. Right now, Kerry's hope is to use his war exploits to neutralize Republican attacks on his extraordinarily liberal voting record. But once gay marriage becomes a major focus of the campaign, Kerry's vote against DOMA is going to become a huge problem. In the contest between the image of Kerry the war hero, and the image of a dovish, tax-loving, Massachusetts liberal, Kerry's DOMA vote is going to push attention back onto his votes. Three big issues on which Kerry's votes are well to the left of the country constitute a trend.
Kerry understands that the gay-marriage issue is a serious problem for him. Noam Scheiber reports that Kerry is at least considering supporting an amendment to the Massachusetts state constitution defining marriage as the union of a man and a woman. Of course, endorsing a state marriage amendment would get Kerry into terrible trouble with his Democratic base and permanently mark him out as an unprincipled flip-flopper. How can a man who condemned DOMA as anti-gay turn around and support a state marriage amendment? And if Kerry does support a Massachusetts marriage amendment, it would be very difficult for him to credibly oppose the Federal Marriage Amendment.
In the end, nothing could be fairer than to link John Kerry to the actions of his state's Supreme Judicial Court. In truth, Kerry is a Massachusetts liberal of exactly the same stripe as the majority justices in Goodridge. If John Kerry is elected, gay marriage will surely be nationalized by the end of his term. A Bush defeat would take the wind out of the sails of the campaign for the Federal Marriage Amendment, assure liberal judges that no serious consequences will arise from nationalization, and bring more Goodridge-style liberals onto the courts. A Bush victory, on the other hand, would keep the FMA alive, would help signal the courts that they've gone too far, and would stop the proliferation of activist judges on our courts. Whatever else it will be, this election will be a national referendum on gay marriage. That looks like bad news for John Kerry and the Democrats.