One of the most disingenuous arguments put
forth by those supporting (state and federal) constitutional
amendments banning gay marriage is that out-of-control
“activist judges” and local officials are trying to
redefine marriage. In essence, they are saying that, through
anarchy, these zealots will get what they want unless responsible
folks like President Bush do something NOW.
On Feb. 24, as we all know, Bush proclaimed his support for an
amendment to the U.S. Constitution that would define marriage as
between one man and one woman. In his own words:
Some activist judges and local officials have made an
aggressive attempt to redefine marriage. In Massachusetts, four
judges on the highest court have indicated they will order the
issuance of marriage licenses to applicants of the same gender in
May of this year. In San Francisco, city officials have issued
thousands of marriage licenses to people of the same gender,
contrary to the California family code. That code, which clearly
defines marriage as the union of a man and a woman, was approved
overwhelmingly by the voters of California. A county in New Mexico
has also issued marriage licenses to applicants of the same gender.
And unless action is taken, we can expect more arbitrary court
decisions, more litigation, more defiance of the law by local
officials, all of which adds to uncertainty.
There are numerous holes in the president’s argument.
1) As Bush made his speech, the California governor and attorney
general were suing the City of San Francisco to stop licensing gay
marriages and presumably to nullify any marriage certificates
already granted to gay couples. Just yesterday, the California
Supreme Court ordered Mayor Gavin Newsom to stop issuing the
licenses, though, to be fair, the court has not yet ruled on the
legality of his actions.
2) If they disagree with the Supreme Judicial Court’s
ruling, Massachusetts legislators, and its voters, can amend the
state constitution and thus reverse the court ruling. It looks as
if they will.
3) The New Mexico incident was over almost as soon as it began.
After receiving an opinion from the state attorney general that
same-sex marriages would be “invalid under the state
law,” the Sandoval County clerk withdrew her offer to issue
marriage licenses to same-sex couples and had an aide inform the
recently wed couples that their marriages were invalid.
Also of note: After a modest demonstration in Detroit urging the
Wayne County clerk to issue gay marriage licenses, Michigan
Attorney General Mike Cox wrote to county clerks that issuing the
licenses would be against Michigan law. Any clerks who do so will
face injunctions and/or lawsuits, he said. You know how many have
Nevertheless, some conservatives still argue that the federal
amendment is necessary. All evidence to the contrary, they say the
Defense of Marriage Act of 1996 might not be enough to prevent
states from having to recognize same-sex marriages licensed by
other states — which is what they fear, that all 50 states
will have to recognize one state’s gay marriages. Still, the
fact remains that in its eight years of existence, the federal DOMA
has not been struck down and states are under no obligation to
recognize other states’ marriages. In fact, the issue has
never come up.
The president has said in the past that states should decide for
themselves whether or not to recognize same-sex marriages or civil
unions. Congress should heed his advice from earlier and not
interfere. A federal amendment is not necessary. The system is
working. Let states legislate their own morals.
Cox’s ruling, which is the law
unless overturned by a court, is a good thing. Issuance of
gay-marriage licenses by any clerk would no doubt provoke a
lawsuit, which would eventually work its way up to the state Court
of Appeals or Supreme Court, which has final say. The Supreme
Court, with a 5-2 Republican majority, would almost certainly hold
the Michigan DOMA constitutional, thus establishing Michigan
judicial precedent as opposing gay marriage. That would be a bad
Supporters of gay marriage — or even civil unions —
would be well advised to hold back until one of the conservative
state justices steps down from the court. Another Democrat on the
court would slim the GOP majority to one. And one of the
Republicans, Elizabeth Weaver, has demonstrated a Sandra Day
O’Connor-like streak, especially since her fellow justices
didn’t support her for another term as chief justice three
Hold your breath.