August 05, 2004,
The Federal Marriage Amendment can win. Anyone who believes it can't simply hasn't thought through the complicated chess game that is the battle over gay marriage. I'm not saying the FMA is bound to pass. Marshaling the super majorities required to ratify a constitutional amendment is always an uphill battle. But the FMA has a vastly greater chance of passage than most folks realize. We're only past stage one of the process. And the overwhelming victory in Missouri this week of a state constitutional amendment defining marriage as the union of a man and a woman has ushered in stage two.
A federal constitutional amendment requires a two-thirds majority of both houses of Congress, and must be ratified by three quarters of the states. Impossible? Well, the 1996 federal Defense of Marriage Act (DOMA) received well over two thirds of the vote in both houses, and three quarters of the states now have DOMAs of their own. (The number of state DOMAs recently expanded from 37 to 38.)
Some say the country is more liberal on gay marriage than it was in 1996. And the public is always reluctant to amend the federal constitution Yet Americans oppose gay marriage by large margins, and that opposition is easily enlarged by events. Above all, much of the sentiment against an amendment rests on the conviction that federal and state DOMAs will hold. Once the DOMAs come under attack, everything is going to change.
The gay-marriage contest is not like other political battles. It has its own rather peculiar political dynamic. Gay marriage is an issue most people prefer to avoid. The public may oppose gay marriage, but what it really wants is to avoid having to talk about it. This creates a false impression of apathy. Yet when court-imposed gay marriage looks inevitable, the public's stance flips. Once people decide that gay marriage is about to be forced on them against their will, they are galvanized into action.
It's happened again and again. Back in 1998, Hawaiians amended their state constitution to prevent their supreme court from imposing gay marriage. In 2000, Vermont's formerly quiescent conservatives were pushed into full rebellion by civil unions. The Republicans managed to take back the lower house of the Vermont state legislature for the first time in 14 years this in a state won in a walk by Gore (with a huge vote for Nader to boot).
For those with eyes to see, it was clear in the last session of the Massachusetts state legislature that the state's Supreme Judicial Court was about to legalize gay marriage. Yet given public reluctance to deal with the issue, the Democratic leadership managed to squelch an effort to call a constitutional convention. After Goodridge, though, Massachusetts was turned upside down for months at a time, as session after deadlocked session of a constitutional convention bitterly debated gay marriage. There were angry public demonstrations, and the media was filled with the issue for weeks on end. Finally, a constitutional convention passed an amendment that defined marriage as the union of a man and a woman and provided for civil unions.
Delaying the InevitableIf all this can happen in one of the most liberal states in the union, we can expect an even greater battle once it becomes clear that gay marriage is headed for the U. S. Supreme Court. The public is reluctant to act on this issue until they absolutely have to, precisely because people fear the polarizing debate that inevitably follows. Yet time and again, when pushed to the wall by the courts, the public has been galvanized into action.
Sometime between now and the moment the U.S. Supreme Court agrees to take a gay-marriage case, the American public is going experience its own galvanic moment. At that point, all illusions that federal or state DOMAs can hold will be swept aside, and the battle over the Federal Marriage Amendment will be well and truly joined. I can't tell you whether the FMA will pass at that moment, but I can tell you that it's going to get a whole lot more votes than it received in the Senate a few weeks ago.
Right now, the national battle over gay marriage is at the stage the state battle was in when the leaders of the Massachusetts legislature squelched concerted calls for a constitutional convention. While plenty of people are girding for the inevitable showdown, many others are doing what they can to delay and deny. Yet the truth is, a major national showdown is inevitable. And when that moment comes, the FMA is going to get a whole lot closer to passage than anyone now realizes. A two-thirds vote in Congress is by no means out of the question.
Looking at the recent Senate FMA debate, you can see the signs. It was next to impossible to find a Democrat willing to defend gay marriage. Instead, the Democrats claimed that DOMA would hold, and dismissed the drive for an amendment as a distraction. Most Republicans, on the other hand, argued vigorously in favor of marriage as the union of a man and a woman. There were plenty of references to the critical importance of marriage for children, and to Europe's experience of gay marriage. There was a time when gay-marriage advocates claimed that Republicans were afraid of this issue, and bereft of substantive arguments. Yet in the Senate, it was the Democrats who awkwardly ran from substantive debate. When the progress of this issue though the courts makes it clear that an up or down vote on substance is required, what are the Democrats going to do?
A couple of weeks ago, the House passed a bill that would strip the federal courts of jurisdiction over gay marriage. That vote was a shot across the bow of every court in the country. The House put the judiciary on notice that their usurpation of the legislative role puts their powers at risk. Still, the vote on court stripping was prelude to a later showdown over the Federal Marriage Amendment. Even stripping the federal courts of their authority to rule on the constitutionality of DOMA would not prevent them from imposing gay marriage on equal protection or due-process grounds. Only a constitutional amendment can do that. But the House vote was clearly a warning to the courts that a major battle looms.
There is simply no issue on which media bias is greater than gay marriage. The New York Times buried news of the House's court-stripping vote on page 19. Yet after the Senate vote, the press played up the Republicans' failure to get close to a two-thirds vote, and touted the supposed split within Republican ranks. And of course, gay-marriage advocates did their best to portray the FMA campaign as nothing but an attempt to cater to religious conservatives.
Democratic IndecisionOn just about every point, the truth is the reverse of the media's line. It's not just that the recent FMA vote was merely a prelude to what will surely be a more serious and closely fought showdown in the future. The truth is, it's the Democrats who are divided on gay marriage. Republicans oppose gay marriage by large margins. Democrats are almost evenly split. That's why some Senate Democrats support the amendment. And that's why virtually no Senate Democrats dare argue in favor of gay marriage. The truth is, there simply aren't enough religious conservatives in the country to account for substantial majority of the public that opposes gay marriage. It's wasn't conservative Southern Baptists who prevented Senate Democrats from making an open defense of gay marriage. It was the many independents and moderate Democrats who think gay marriage is a bad idea.
If you want to get a truer picture of what's happening in the gay-marriage battle, look at Oregon. Oregon is a battleground state that could easily be tipped into the president's column by the issue of gay marriage. Activist judges have been issuing marriage licenses in an Oregon county. And elected officials in Oregon have taken some truly outrageous actions to circumvent democratic procedures and impose gay marriage on the public. Outrage over all this has kicked off intense public debate. Petitions to place an amendment to the state constitution on the November ballot received more signatures than any other ballot measure in Oregon's history.
Oregon senator Gordon Smith's speech on the Senate floor did not fit the stereotype purveyed by gay-marriage advocates of those who support FMA. Smith spoke eloquently for the many Americans who happily approve of greater social tolerance for gays, yet who also believe that gay marriage would weaken the institution of marriage.
But the big news this week was the runaway victory of a state marriage amendment in Missouri. The measure passed with 71 percent of the vote. That is a strikingly high number substantially higher than pre-vote polling. A pre-election poll by the Kansas City Star had found that 62 percent would favor the amendment, with 20 percent opposed and 8 percent undecided. A St. Louis Post-Dispatch poll conducted a week before the vote had 56 percent of voters in support of the amendment, with 38 percent opposed and 6 percent undecided. While the final 71-percent margin might have indicated a last-minute surge, it's more likely that some voters were reluctant to tell pollsters that they favored the amendment. On this issue, polls often underplay voter support for one-man, one-woman marriage. This suggests that current polling substantially underestimates public support for a Federal Marriage Amendment as well.
Ah, but perhaps recognizing the depth of public sentiment on this issue, gay-marriage advocates and liberal judges alike will hold off on further attempts to transform the meaning of marriage. Don't bet on it. Just yesterday, a judge in Washington state ruled to legalize gay marriage. (The decision has been stayed pending final resolution by the Washington state Supreme Court.) Since Washington is one of the 38 states with their own DOMA laws, explicitly defining marriage as the union of a man and a woman, it's evident that neither fear of, nor respect for, democratically expressed public opinion have called this process to a halt. In his decision (which never truly confronted the key arguments against same-sex marriage), Judge William Downing explicitly stated that he could not allow the political ramifications of the issue to stop him from rendering a decision.
This, again, reflects the unique legal-political dynamic of the gay-marriage question. Although the analogy is seriously flawed, gay-marriage advocates see this issue as one of fundamental civil rights. They cannot and will not hold back from moving gay marriage through the courts. Once faced with the issue, liberal judges recoil in horror from the prospect of going down in history as an opponent of civil rights. So despite the political risks of pressing forward, the process moves on of its own ineluctable weight. This is truly a case where an irresistible force is hurtling swiftly toward an immovable object. And when the clash comes, the political calculations in this dispute are going to change.
The media have continually stressed the supposed apathy of the American people on this issue. Yet the arousing of the public in Missouri, Oregon and a series of other states belies those claims. As soon as people believe that elites are about to impose gay marriage on them, they spring into action, however reluctantly. The electoral fate of senators who voted not to consider the FMA will give an early indication of how this campaign is going. But the recent votes in the House and Senate are just the beginning of the dawning realization that, in the end, this is a national issue that requires a national solution. Sooner or later, the inevitable raft of lawsuits, the chaos of marriages that fall apart on the Interstate, and the untiring efforts of gay-marriage advocates and liberal judges to circumvent the democratic process, will force the issue nationally. When the final showdown comes and it will come victory for the FMA is a very real possibility.