FINAL DAYS: David Frum

Barring some unforeseen late-breaking development, the state of Massachusetts will commence issuing same-sex marriage licenses on Monday. About 15 minutes after that, the national debate over same-sex marriage will shift from lively to brawling. ...

In recent months, the battered old principle of federalism has benefited from a similar influx of unlooked-for acclaim.

People who had little use for federalism when the issue was abortion have suddenly discovered a huge new respect for state sovereignty now that state sovereignty can be invoked to protect Massachusetts' revised version of marriage.

I've argued in this space that marriage long ago ceased to be a local institution--that the modern American economy and modern American government cannot cope with the possibility that two people can be married on one stretch of I-95 and unmarried an hour down the road.

Now we're going to put the issue to the test. And we're going to test something else too: the good faith of the proponents of same-sex marriage in a single state. A little while ago, I wrote out a list of examples of the difficulties that would be caused by this new insitution of now-you-see-it-now-you-don't matrimony. You can find the complete list here. My friend Eugene Volokh of UCLA law school recently posted an impressively thorough reply to my challenges. His answer, basically, was that from the point of view of the other 49 states and the federal government, these Massachusetts marriages would be completely nugatory and could be ignored at will. Well, we'll see about that. My own prediction is that the forces pressing for same-sex marriage in Massachusetts will not long remain content with Volokh's answers, theoretically credible though they might be. So long as the battle over the Federal Marriage Amendment rages, they'll swear devotion to the doctrines of local self-determination. But those vows will quickly become inoperative. After all, if they really cared so deeply for local self-determination, they would have tried to persuade the Massachusetts legislature to rewrite the law, rather than persuading one of the country's most insulated judiciaries to do the job instead.

In the midst of this swirling debate comes a truly remarkable book, Jonathan Rauch's "Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America." ...

Jonathan appreciates too that marriage will be harmed if the government tries to redefine marriage in ways that shock the conscience of its people. If "legal marriage" deviates from "real marriage"--if for example the US Supreme Court were to announce tomorrow that same-sex couples can "marry" in exactly the same way that men and women can--the court would not change Americans' minds; it would only discredit the institution of marriage.

This recognition has made Jonathan one of the few sincere advocates of a federalist approach to the same-sex marriage issue. Most of those who now profess to accept Eugene Volokh's tough restrictions on the validity of Massachusetts' same-sex marriages are quietly preparing to reverse themselves on Tuesday and to begin agitating for full nation-wide judicial recognition. Jonathan is an exception. ...

...But Jonathan’s own vision of marriage explains why his arguments ultimately fail. Jonathan suggests that many liberal Americans already accept same-sex marriage. They treat same-sex couples as "married": and when the government refuses to follow, the government discredits the institution of marriage in the eyes of this sector of heterosexual society and makes cohabitation a more attractive option for them. That's why (he says) same-sex marriage would be "good for America." But it's also true that there is a much larger population of Americans who show no signs of ever accepting the legitimacy of same-sex marriage. What Massachusetts is proposing to do will marginalize them and banish their deepest principles and convictions to the outskirts of American life. If we want to have a national consensus about and in favor of marriage--as Jonathan rightly wants--we have to recognize that the only way we can have it is on the terms that exist today, before the mischievous rulings of the Massachusetts Supreme Judicial Council begin their destructive work.

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posted by Eve at 8:44 PM | link

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