COURTING THE GAY VOTE: Jeffrey Bell and Frank Cannon

IF PRESIDENT BUSH is reelected, it's a good bet that the bloodiest fight of his fifth year in office will have nothing to do with the war or the economy. It will be over the filling of one or more vacancies on the Supreme Court.

If Sen. John Kerry is elected, suspense will quickly drain away from the future of the court. This is true even if the court's nine members, eight of them now 65 or older, confound expectations by staying where they are for another year or two. Because even without turnover, at least five members of the present court will undoubtedly interpret the election of John Kerry as a mandate to complete the social revolution they and other judges have begun.

In the context of a Kerry presidency, there will be five solid votes to throw out Congress's ban on partial- birth abortion. There are five justices who made it fairly clear last term, when they set aside on a technicality Michael Newdow's challenge to the words "under God" in the Pledge of Allegiance, that the right case might well leave the deity considerably more vulnerable.

And, above all, the election of John Kerry will almost certainly mean that six justices would feel free to overturn the 1996 Defense of Marriage Act, clearing the way for same-sex marriage to spread from state to state under the Constitution's "full faith and credit" clause. After all, as one of 14 senators to vote against DOMA on final passage, Kerry attacked the Clinton-signed
legislation as unconstitutional and as "gay bashing." ...

Of course, John Kerry has campaigned this year as an opponent of same-sex marriage. More than once, he has said he agrees with the president on that. More than once, he has said he agrees with voters in Missouri and other states who have carved marriage between a man and a woman into their state constitutions in order to fend off hovering judicial elites. Will those same judicial elites feel free to proceed on their project even if the only prominent candidate who supports same-sex marriage, Ralph Nader, is held to 1 or 2 percent of the national vote?

Such questions are nearly as irrelevant to the judicial revolutionaries as those musty old arguments about whether writers of constitutions, federal or state, intended in their wildest dreams to mandate same-sex marriage. This issue is far from settled even assuming a Bush victory in the election, and subsequent Bush victories in bloody Supreme Court confirmation battles. But legal and judicial elites understand that the election of John Kerry will signal irrevocable victory for the liberal social agenda, most certainly including same-sex marriage.

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