Conservatives should keep "gay marriage" out of the courts, say two lawyers who served in the Justice Dept. under Presidents Reagan and Bush I.
David B. Rivkin Jr. and Lee A. Casey argue in an op-ed in the New York Times (11-17-06) that constitutional amendments defining marriage are a bad idea. It is a matter which should be left to state legislatures. Indeed, the very fact that even our hideously liberal legislators here in Massachusetts have still not passed a statute legalizing homosexual marriage says a lot about the wisdom of this. Our legislators haven't had the nerve to bring it to the floor for debate and vote, and they're hoping that no one notices this has not yet be done!
Once our side concedes that a basic concept such as marriage needs to be further defined in a constitution, we're in trouble. Especially in Massachusetts, where the constitution actually refers to marriage, and therefore already assumes the traditional meaning of marriage, our constitution does not need amending! (And the current VoteOnMarriage proposal would just open up a new can of worms, allowing current homosexual "marriages" and civil unions. By not nullifying these concepts, the amendment would imply that they are acceptable.) When will we have to start defining concepts such as parent, or religion, or education in constitutional amendments? Where will it stop? From the op-ed:
...Moreover, the meaning of marriage, as important as it is, is no more crucial than many other issues of individual autonomy and morality that have also historically been decided by the legislatures. These include adoption and child-welfare laws, as well as a host of criminal and other regulatory measures of the greatest moment.
Indeed, cluttering state constitutions with the disposition of many difficult social issues — and this process will probably go on, and even accelerate, especially if all of the states choose to define marriage in their constitutions — is likely to empower the judiciary more. This paradoxical and unwelcome result would arise because some of the newly enshrined constitutional definitions and guarantees are sure to conflict with one another, leaving the courts the only venue for resolving the tension. Conservatives should find this outcome highly unpalatable....
If state legislatures were free to define and re-define marriage, we would have genuinely political solutions to an especially difficult and incendiary issue. Very few people do not hold deep convictions regarding same-sex marriage. To enshrine the definition of marriage in a state’s constitution removes the issue from the give-and-take of the normal political process. That process rarely produces an absolute victory for any side, but it also rarely results in absolute defeat. The outcome is never final; the defeated party can rally, regroup and try again....
By contrast, a constitutional amendment resolves a policy issue with a sufficient finality to prompt a more or less permanent sense of injustice and bitterness on the losing side....
