CONSTITUTION-AMENDING: Marty Keller

[Marty Keller is a former president of the California Log Cabin organization.]

David Benkof writes: "The people who say 'Do what you will but don't touch the Constitution' are really saying 'Have your opinion but don't do anything about it.' It's disingenuous and unfair. Had SSM proponents turned to legislatures or the initiative process rather than courts, we would have had a much more democratic process."

One of the maddening ironies of democratic discourse is the predictable interchangeability of arguments among proponents of various debate outcomes. Is there any sentient being out there who doesn't think that the Gore and Bush people would easily have swapped arguments if Gore had had a 427-vote lead at the end of the first Florida canvass instead of the President?

So, too, with the SSM debate. "Conservatives" who would scream and holler if SSM supporters were proposing to amend the constitution to permit same-sex marriage are unironically attacking "liberals" for opposing their campaign! Mr. Benkoff finds this "disingenuous and unfair."

But, come on, friends. Minorities have always turned to the courts to seek redress against what they have perceived to be the tyranny of the majority. That's part of what they're there for! The Founding Fathers spent a lot of time at the constitutional convention worrying about this precise problem; the courts were established as an independent third branch of government precisely to deal with case like SSM where minorities allege deprivation of equal protection of the law. Is there any doubt that, had the Supreme Court not overturned Plessy v. Ferguson in the Brown decision, blacks in Arkansas would still be waiting for the majority to "approve" their rights to equal educational opportunities in the state government school system? Was the actual decision not truly, in the largest sense, the result of a "democratic process," one that reaches across centuries and binds us Americans together in a powerful philosophy of limited government that has served us, with one major exception in the mid-nineteenth century, well?

Opponents of SSM like Maggie Gallagher and Stanley Kurtz argue that the long-term consequence of permitting SSM (by any venue, by the way, judicial or legislative) will be the destruction of the deeply beneficial value that marriage has had for human society, with all the attendant horrors such unraveling would engender. But when proponents argue that solving this problem by constitutional amendment will have the long-term consequence of destroying the value and purpose of the Constitution, they are being "disingenuous and unfair."

I have one question for Mr. Benkof: Are you truly prepared to jettison the role of the courts in determining whether minority rights have been unconstitutionally abrogated by an unthinking or even prejudiced majority?
posted by Eve at 3:39 PM | link

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