The debate in the U.S. Senate over the Marriage Protection Amendment has been one in which traditional lawmaking roles have been reversed.
The usual pattern, in which proponents of legal change must bear the considerable burden of convincing their legislators and fellow citizens that a change in law or policy is in order, is not being followed. This traditional approach was followed in a number of countries – Canada, of course, and most recently Spain – where legislators passed laws authorizing homosexuals to marry.
What is going on here is very different. The proponents of same-sex marriage have avoided the need to persuade any legislature to change the law to accommodate their interest. Instead, they have taken the view that they don’t need to change the law. They believe that the state and federal constitutions can be made to accommodate their wishes without further legislation or amendment. All that needs be done, in their view, is to find a court that will conclude they already have the right to marry.
The effect of this bold strategy has been to shift the burden to their opponents, who are using spectacular means to put a halt to their campaign.
So far, 45 states have taken action to either pass laws or state constitutional amendments declaring that marriage is limited to the union of one man and one woman. And of course, that doesn’t include the onerous task of amending the federal constitution, a task that ultimately requires the approval of 38 state legislatures.
No state legislature has authorized same-sex marriage except for California, in an bill vetoed by Gov. Arnold Schwarzenegger. In the one state where it is lawful – Massachusetts – it was imposed by a state supreme court, so citizens may yet have an opportunity to overturn that ruling.
Given this background, it is astounding that proponents of same-sex marriage can still lecture the rest of the country about how democracy is supposed to work. Their campaign has become a kind of mindless chant designed not to enlighten but to obscure.
These are the major arguments being advanced against the Senate debate:
Argument: The debate is premature. There is no immediate threat that widespread same sex marriage will be mandated by the courts. Response: It is not for lack of trying. States that have barred same-sex marriage have found their laws attacked on a variety of grounds. Opponents of the federal amendment say in one breath the issue should be left to the states but with the next breath argue that they will sue any state that dares define marriage in the traditional fashion.
Argument: The issue is divisive and the Republican majority in the Senate is simply trying to appeal to its right wing base. Response: Of course the issue is divisive. It was divisive when homosexuals began insisting they had a right to marry. That didn’t stop them. Debates are divisive, and so are elections. So what? Note that a majority of the House and a plurality of the Senate favor the amendment (Wednesday’s vote was 49-48). When people in the states have had an opportunity to vote on similar amendments, more than 70 percent voted for them. In most democracies, these are not the kind of numbers that are ignored.
Argument: The issue of amending the U.S. Constitution isn’t important. The Senate should be debating other things like oil prices or health care. Response: The proponents of same-sex marriage can’t have it both ways. The amendment is obviously important enough from their point of view to warrant an all-out attack against it. If it is unimportant, why make such a fuss? It is worth noting that most constitutional amendments don’t pass on the first try. The Equal Rights Amendment, much favored by feminist groups, was kicked around for years before failing to get the required 38 states to ratify it. Nobody complained then that it was divisive or keeping Congress from more important business.
The irony is that opponents of the federal amendment are arguing against the use of a power in the constitution, the amendment process, that is arguably the most democratic provision in the entire document.
They are arguing against the right of the people, instead of the courts, to decide this policy question.
One need not wonder why.
Al Knight of Fairplay (alknight@ mindspring.com) is a former member of The Post’s editorial-page staff.
