BUSH HAS WRONG REMEDY TO COURT-IMPOSED GAY MARRIAGE: Stuart Taylor, Jr.

...In that spirit, I prophesy that Kennedy, his four more-liberal colleagues, and possibly Justice Sandra Day O'Connor, will seek to promote gay marriage but will proceed cautiously, with their fingers to the winds of public opinion. They may begin by issuing narrowly drawn decisions enforcing state court judgments -- which other states have almost always been required to honor -- such as judicially approved property settlements in divorce decrees growing out of Massachusetts gay marriages. And when these justices sense that the time is ripe -- assuming that those who remain on the Court have the votes -- they will apply the full-faith-and-credit two-step to ban states from discriminating against other states' gay marriages in any way.

This prospect leaves me quite conflicted. While I strongly support gay marriage, I oppose its imposition by judicial fiat. And while judicial activism at its best can build public consensus for long-overdue reforms, I am concerned that the courts have increasingly crossed the line from exercising healthy activism into usurping legislative powers, disdaining representative government, and casually casting aside tradition in the guise of interpreting the Constitution.

So I have some sympathy for the idea of amending the Constitution to prohibit any judicial decision construing that document to require recognition of any gay marriage. ...

By no stretch of the imagination, however, is the proposed amendment behind which Bush has placed his prestige an appropriate way to protect representative government. Quite the contrary. The first clause of the so-called Musgrave amendment (sponsored by Rep. Marilyn Musgrave, R-Colo.) would impose a uniform federal definition of marriage upon the whole country: "Marriage in the United States shall consist only of the union of a man and a woman." This amounts to an anti-democratic, anti-federalist effort to ban all state legislatures, for all time, from experimenting with gay marriage -- even if and when most voters in most states come to support gays' right to wed. And public opinion appears to be headed in that direction: Although polls still show voters opposing gay marriage by a ratio of about 2-to-1, the numbers appear to be softening over time. Especially significant is that young voters are far more open to gay marriage than old ones.

In this sense, the president's position on gay marriage has something in common with that of the Massachusetts court: Neither is willing to defer to democratic governance. While the court has imposed its definition of marriage on today's voters, Bush seeks to impose his own definition on their children and grandchildren.

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posted by Eve at 6:41 PM | link

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