February 20, 2004

Marriage, Again

Longtime readers know I generally favor gay marriage, but that I haven't written about the topic in quite a while, even as it's sprung into the headlines. The reason is ambivalence: Despite my support for gay couples seeking to wed on both coasts, I can't say I entirely approve of how this coming about.

As Instapundit has pointed out, the Goodridge decision in Massachusetts, which demands gay marriage, is far less persuasive than the the Baker decision that led to civil unions in Vermont, and I'm wary in any case of reading into constitutions things that their authors (in the case of Goodridge, the settlers of colonial Massachusetts) would not have imagined.

As for Mayor Newsom in San Francisco, I see little distinction between his actions and those of Judge Roy Moore in Alabama, with his Ten Commandments monument. The rule of law demands that public officials uphold their oaths of office.

I don't object in principle, obviously, to non-democratic checks against majoritarian tyranny, but there is a simple utilitarian problem with imposing social change undemocratically, in that it can create more problems then it solves, as with the corrosive polarization of the abortion debate in the wake of Roe vs. Wade. I fear that the debate over marriage is headed down the abortion road. (The other day I saw, for the first time, a car in suburban Baltimore with an anti-gay marriage bumper sticker.)

Nick Shulz has an excellent column today on conservative ambivalence over this issue. He writes:

Lots of younger conservatives think of themselves as tolerant, freedom-loving and possessing metropolitan sensibilities; but they also revere tradition and aren't comfortable with needlessly monkeying around with old institutions. The issue of same-sex marriage sits atop the intersection of these values.
I face a different but related problem; I value rationalism, and after studying the issue I find myself unpersuaded by the various sociological arguments against same-sex marriage of Stanley Kurtz, Maggie Gallagher, et al.; and also unnerved by the manner in which gay marriage is arriving.

Schulz suggests that ambivalent conservatives might find solace in the approach of Jonathan Rauch (who has long influenced my thinking on this topic), who proposes an alternative to the Federal Marriage Amendment that many conservatives are now signing on to: a constitutionalized Defense of Marriage Act, reading simply, "Nothing in this Constitution requires any state or the federal government to recognize anything other than the union of one man and one woman as a marriage." I think I could support that, and I might urge states to similarly constrain judicial activism at the state level. I would also, of course, urge state legislatures to legalize gay marriage.

Posted by John Tabin at February 20, 2004 11:09 PM