Bush: Marriage is a Sacred Institution

After weeks of speculation about what he would do, President George W. Bush has finally stated his official support of a "Family Marriage Amendment" which would change the constitution to establish "marriage" as a "union between one man and one woman." Even opponents of gay marriage, however, wonder about Bush's real motives and whether amending the Constitution is such a good idea.

USA Today reports:

"After more than two centuries of American jurisprudence and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization," Bush said. He decried "activist courts" and portrayed an amendment as a "decisive and democratic action" to reflect the public's will.

Funny, but there was a time when much the same could have been said about slavery, or bans on interracial marriage. Bush has also been quoted as describing marriage as a "sacred" institution - that, however, simply gives the argument away. If he is using a "sacred" conception of marriage, then of course that definition can't be made the basis of law without thereby establishing a religion.

Andrew Sullivan comments:

He is proposing to remove civil rights from one group of American citizens - and do so in the Constitution itself. The message could not be plainer: these citizens do not fully belong in America. Their relationships must be stigmatized in the very Constitution itself. The document that should be uniting the country will now be used to divide it, to single out a group of people for discrimination itself, and to do so for narrow electoral purposes. Not since the horrifying legacy of Constitutional racial discrimination in this country has such a goal been even thought of, let alone pursued. Those of us who supported this president in 2000, who have backed him whole-heartedly during the war, who have endured scorn from our peers as a result, who trusted that this president was indeed a uniter rather than a divider, now know the truth.

I'm sorry, but how can anyone take Sullivan's self-pitying whining seriously? If he trusted that Bush was a "uniter rather than a divider," then he was too naive to be a nationally syndicated author - or he suffers from too much cognitive compartmentalization. The latter might actually be the case because he does, after all, work for a man who has called for gays to be to be "purged." Sullivan's description of the situation is fair and even eloquent, but he simply doesn't have the ethical or intellectual authority to make such comments stick. For far too long he's been a shill for the same people he now claims to find outrageous.

The wording of the final amendment will be important. As many have noted, the most popular proposal right now would not only ban gay marriage, it would even ban civil unions. Indeed, it might even undermine non-discrimination laws in things like housing. Jack M. Balkin explains:

The amendment says that no "state or federal law shall be construed to require" that "the legal incidents of" marriage may be enjoyed by same-sex couples. These legal incidents include a whole bundle of rights in family law, pension law, tort law, property law, and so on. What the text seems to say is that everyone who is sworn to uphold the law, including not only judges, but executive and administrative officials, would be prohibited from construing the law to give same sex couples this bundle of rights or any part of them.

Since the law cannot be construed to do this, it cannot be enforced to this effect either. Private employers who give same sex couples benefits similar to those of married couples would be able to do so, but they would not be permitted to construe any federal or state law as requiring them to do so, and no government official could enforce such an interpretation against private businesses. Thus, California's laws, which now give same sex couples many (but not all) of the same rights as married couples, and Vermont's civil unions law, which gives almost all of the same rights, would probably be made unenforceable by the Amendment's second sentence.

If the only purpose was really to ban gay marriages, and nothing but, then alternative wordings exist. If the only purpose was to prevent some states from being forced to recognize gay marriages created in other states, then still more alternative wordings exist. Since the authors of the amendment are not idiots, we can presume that they were aware of potential alternatives and deliberate choose the currently popular version over them - and, hence, that the implications described above are, indeed, what they would like to achieve.

Why is Bush supporting this amendment? As I've written before, this is a "wedge issue" - the real point is less about gay marriage or gays generally than it is about the so-called "culture wars." Focusing on this is a good way for Bush to energize his far-right base of support - people who, coincidentally, have been talking about not voting for him because of his lack of enthusiasm for their core agenda.

In addition, it allows for distraction from other issues, like Iraq and the economy. Republicans do very well when it comes to "cultural" issues - they appeal to very conservative tendencies in American society through the use of strong rhetoric. I emphasize "rhetoric" because, in the end, the Republicans often don't achieve very much. Abortion is still legal, women are still in the workforce, and gays are more tolerated than ever before. All of this and more makes various segments of the public nervous and Republicans can appeal to their fears, but they rarely end up doing much about those fears. Gay marriage is a great issue for appealing to peoples fears without actually having to accomplish much (even if an amendment passes, it won't be for several years).

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