The Constitutional Process
 
 

Since my last posting on the subject, some months ago, the issue of gay marriage has really warmed up.  The MA state high court ruled against laws prohibiting it, Bush talked about it in his speech, and the mayor of San Francisco, CA started performing them outright.  The channels are alive with the buzz that Bush is considering a constitutional amendment to define marriage.  And why does everybody think Bush is considering such an amendment?  Why, I am told, because Bush himself said so in the State of the Union.

But he most certainly did not.  If you'll remember, he said he was considering 'the constitutional process'.  There is a big difference, as those of you who read my columns may already know.  We've been down this road before, remember, after his big speech in late September, 2001.  At that time, our media 'analyists' wanted to put rational concepts to the irrational words he spoke, and so everybody in the period following 9/11 thought he was talking about getting al Qaida, not starting a violent global war to be concluded only when there is no possibility of a violent crime occurring in America.

But if you actually listened to the words he spoke in his speech, you could see exactly what was happening.  He was not going to do the obvious - tighten border security, add analysts to the intelligence agencies and maybe try to attack al Qaida.  He was going to use al Qaida as an excuse to start his war against a broader 'evil'.  An evil not defined by the globe, or even by the US, but by his own team of crusaders.

And now it's happening again.  Since Bush said he was considering the constitutional process 'in defense of marriage', the media took it to mean that he was talking about an amendment limited to marriage.  And yes, that might be a rational and focused thing to do, if you really want to preserve the current institution of marriage.  But I don't believe that Bush is considering a marriage amendment, and I'll tell you why.

First, as I noted in my last opinion, this is a much bigger battlefield than the single-issue focus going on in the public.  What the courts have said, in agreement with precedent and the designs of the US Constitution, is that rules which are created on strictly moral grounds are unconstitutional on their face.  This sounds like a small enough thing, maybe even a little obvious, but it is the whole banana in the culture war.  If allowed to stand, it marks the beginning of the end of victimless, non-violent crimes.  It spells disaster for those who want to turn their moral beliefs into law, anywhere in the country.

Second, under these circumstances, it would strike me as cautious and out of character for this administration to be content with a ban on gay marriage.  That would be a defensive move, and these guys don't play defense very well.  They appear to get stuck in the rut of simply restating their actions and saying they were right, no matter what question is posed - and that veneer is a bit thin, even for their own flock.  They are much more comfortable playing offense.  Bush's repeated references to 'activist judges', and his rather desperate attempts to install judges who believe in a strong God and a weak Court, are evidence that they would like to go on the attack if they think they can get away with it.

Third, there is an offensive move available which has been advocated by some of the top conservatives in the country, one which I discussed in my column And Then There Were Two...  This move would be to offer a constitutional amendment which limits forever the power of the judges to interpret the constitution, using the gay marriage issue as a banner under which to attack judicial power.  Such an amendment would outline the means by which the courts, including the Supreme Court, could be overruled by an act of Congress.  It would be entirely in keeping with the Bush team's understanding of the far-reaching implications of recent court rulings, their pattern of using one event as justification for 'a bigger fix', and their preference for playing offense.

Fourth, the fact that Team Bush has not yet presented a proposal does not bode well.  Judging from the polls, and the beliefs of his core constituency, how can they help but think that a marriage amendment would be well received generally, and a boost for his re-election campaign?  But they have not made the move to do so.  Why not?

I suspect it is because it is more difficult to judge public reaction - and congressional support - for the bigger fix, the amendment to limit judicial power, that they have not yet made a move.  But I know the idea is there, and I know they're talking about it right now in conservative circles.  The only question is: will they decide the time is right?

Get ready.
 

February 22, 2004