The Politics of Gay Marriage

With the Kerry-Edwards battle for the Democratic nomination drawing headlines and motivating anti-Bush voters, President Bush’s announcement that he favors a constitutional ban on gay marriage makes political if not numerical or moral sense.

Over 217 years, Americans have proposed thousands of constitutional amendments, from mean-spirited to silly to noble. Only 17 proposals since the Bill of Rights have run the gantlet of Congress and the states. None of those ratified measures, even the foolish and soon-reversed 18th Amendment imposing Prohibition, chiseled discrimination and exclusion into the U.S. Constitution.

Yet that is what an amendment banning gay marriage would do. The spiteful clamor for this ban aside, the proposal faces long odds in winning the required two-thirds approval from both houses of Congress -- the first step toward ratification. The odds against winning the nods of 38 of the 50 states are huge. Most Americans say they don’t favor legalizing gay marriages, but recent polls show most also don’t favor putting a ban on the same level as the Bill of Rights. Given that reality, Bush’s announcement Tuesday can only be a political response to the 3,000-and-counting gay couples who jumped at the chance to wed in San Francisco when the mayor defied California law.

The president has yet to embrace any of the draft versions of an amendment. And both Senate Majority Leader Bill Frist (R-Tenn.) and House Majority Leader Tom DeLay (R-Texas) quickly announced that the amendment was so important that they would be moving slowly and deliberately. Read: We’ll get back to you after November.

The campaign message was different four years ago when Bush was courting moderates and swing voters. Asked about gay marriage then, vice presidential candidate Dick Cheney, whose daughter is a lesbian, said the matter was best left to the states. His reply was consistent with his party’s states’-rights philosophy. It was also correct.

The ponderously titled Defense of Marriage Act that President Clinton signed in 1996 already bans federal recognition of same-sex marriage and allows states to disregard such marriages performed in other states. But the law leaves open the question of how far states may go in sanctioning gay marriage within their borders. Courts have not yet weighed in on the law’s constitutionality or the constitutionality of state laws, such as California’s, defining marriage as between a man and a woman.

Our federal system envisions states as laboratories on issues like marriage, which have always been left to them. Massachusetts may permit gay marriage; Ohio may soon ban it. Instead, Bush has conjured his favorite boogeymen -- “activist judges” and renegade bureaucrats -- to create a constitutional crisis that Americans, in his view, can solve only through amendment.

There’s no crisis here, only a president bent on dividing a nation that is otherwise more concerned about war and jobs.