Friday, 1 August 2003

The Constitution, gay marriage, the flag, abortion, and other issues of the day

As I noted here, placing issues of fundamental political debate in a society beyond the realm of ordinary politics is a monumentally stupid idea. That goes for economic and social rights like those proposed in the EU constitution, and it goes too for gay marriage, as Michael J. Totten points out.

(Michael is probably wrong about the political support for gay marriage in the public; CNN reported today steep declines in support for all sorts of “gay agenda” items in recent polls, perhaps as part of a post-Lawrence backlash. I suspect it will be 20-30 years before most Americans come to accept the idea of gay marriage, due to generational effects.)

I know why conservatives want to amend the Constitution to ban gay marriage, just as they wanted to amend the Constitution to permit Congress to ban flag desecration, and want to use an amendment to ban abortion. Fundamentally, conservatives don’t trust the Supreme Court to leave politically contested issues to the people’s representatives, and perhaps they are right in that regard. But tying the hands of future generations is not the right approach.

Instead, let me offer a simple statement as an amendment: “Nothing in this Constitution shall compel the United States or any state to recognize a marriage formed contrary to federal statutes, nor shall this Constitution require the recognition of any marriage not between one man and one woman.” If Congress decides in 2040 (or 2005, for that matter) that they want to do the right thing and repeal Bill Clinton’s Defense of Marriage Act, such an amendment would permit that while stripping the Court of any means to legislate an alternative definition of marriage in the meantime.

I’m not saying I agree with the idea of an amendment—I’d rather see the whole business dumped off onto contract law, personally—but if there’s going to be one, this seems like the least offensive possibility.