August 04, 2003

SDB goes downhill on gay marriage

Gay marriage can be examined on the procedural plane or on the substantive issues. SDB did both in his original article on Saturday but in the commentary is backing away and claiming that all this talk about how public licensure of gay marriage is about gay love was all just really about the inappropriateness of using a Constitutional Amendment to manage this issue.


While he still hasn't mentioned the Defense of Marriage Act (DoMA), SDB's sticking to procedure analysis and that leaves things somewhat sterile because the push for an amendment can only be properly seen as a backstop in case DoMA fails under judicial review.

It's legitimately difficult to separate the procedural stuff from the substantive. SDB talks about the right to scandalize the neighbors. That's fine as far as it goes but it's a substantive argument, not a procedural one. And the question of gay marriage isn't about scandalizing the neighbors. They're already thoroughly scandalized, or not as the case may be.

What gay marriage creates is a situation where the neighbors pay for the scandalizing behavior in higher taxes and social costs of extending certain legal privileges reserved to the married. State support of marriage costs money.

Certain forms of marriage provide certain secular societal benefits and society has determined that these benefits deserve monetary support and legal privilege. So far, so good as far as conventional constitutional law. Certain other forms of marriage have been determined to be unworthy of support, such as polygamy. Homosexual marriage never even passed the laugh test.

What the courts are considering is the idea that as a matter of equal protection, other forms of marriage can be forced onto the state supported list without actually having to prove that they provide the same or superior societal benefits of monogamous heterosexual marriage.

This is an outrageous expansion of government power. It is also fundamentally dangerous to social stability in a society that uses the judicial precedent system. You can bet that the polygamists will be one step ahead of the child brides in pressing for their types of marriage to be recognized and without the test of support in exchange for societal benefits, how can they be turned away, their equal protection claims unheeded?

In such a situation, a constitutional amendment is the only alternative left to an unconstitutional power grab. Like the original Bill of Rights, it is a pointed reminder to the power elite, saying "and we mean it".

I'm sure that everybody arguing for this amendment would much rather everybody else see sense and not make the amendment necessary. That's not likely to happen initially. The more the amendment effort is treated seriously, the higher the probability that cooler heads will prevail and the amendment will become unnecessary.

This is not an abuse of the amendment process but how the amendment process works in most cases. The political system adjusts in the face of an amendment and does its best to gut it by putting the amendment's goals into legislation. At that point, support ebbs away and the amendment no longer is needed.

Posted by TMLutas at August 4, 2003 12:46 AM