Bush Should Resist Endorsing Anti-Gay Marriage Amendment

Posted November 21, 2003 at 3:29pm

Now that the Massachusetts Supreme Court has legalized gay marriage, President Bush will come under heavy pressure from right-wingers to endorse a constitutional amendment banning such unions and make gay marriage a “wedge issue” in the 2004 campaign. [IMGCAP(1)]

If he’s anything like the “compassionate conservative” he claimed to be in 2000, he’ll resist the temptation. Ideally, he’d come out in favor of civil unions, as practically all of his Democratic rivals have done.

Or, if that’s too “liberal,” he could endorse no action, let the legal system sort out the ramifications of the Massachusetts ruling and take action only when he feels he has to — sometime after 2004.

Already, the upcoming campaign seems likely to be the ugliest in memory. Democrats are accusing Bush of lying to get the country into the war in Iraq and of “destroying America’s liberties” through the Patriot Act. Sen. John Kerry (Mass.) accuses Bush of “deserting the troops.”

Now the Republicans have answered back with an ad that says, “Some are now attacking the president for attacking the terrorists,” implying that Bush’s critics are pro-terrorist. Democrats already accuse Bush of impugning their patriotism, and the charges are likely to escalate.

The campaign could get really dirty if the same Bush Republicans who spread stories in 2000 that Sen. John McCain (R-Ariz.) has a black daughter (she was adopted from Bangladesh) get to work on Democratic candidates who favor civil unions, i.e. statutes that give gay couples the legal protections of marriage without applying the term.

Bush has a moderate record on gay issues. This summer, after the U.S. Supreme Court ruled that gay sex could not be made illegal, Bush said, “I think it’s very important for our society to respect each individual, to welcome those with good hearts, to be a welcoming country.”

After last week’s Massachusetts decision declaring that homosexuals could not be denied “civil marriage,” Bush reacted somewhat more harshly, saying that the court violated the “important principle” that “marriage is a sacred institution between a man and a woman” and said he would “do what is legally necessary to defend the sanctity of marriage.”

Various conservative groups, long unhappy with Bush’s tolerance for gays, have made the “defense of marriage” their No. 1 political priority and are busy writing and promoting amendments to the Constitution to ban gay marriage — and, possibly, civil unions, too.

So far, the only amendment introduced in Congress — by Rep. Marilyn Musgrave (R-Colo.) — reads: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”

Musgrave and the Alliance for Marriage argue that the amendment would not bar Congress or state legislatures from enacting laws extending to gay couples such normal marital rights as inheritance, child custody, hospital visitation, co-ownership of property, etc.

However, the second sentence of the amendment also could be construed as barring any government from extending the “legal incidents” of marriage to unmarried couples.

According to National Review writer Ramesh Ponnuru, a group of arch-conservatives including Nixon White House aide Charles Colson and Reagan drug czar William Bennett wants to add a sentence reading: “Neither the federal government nor any state shall predicate benefits, privileges, rights or immunities on the existence, recognition or presumption of sexual conduct or relationships.”

This language would exclude gays — as gays — from legal protection, but permit legislatures to extend rights associated with marriage to non-married households of all kinds — co-habiting heterosexuals, siblings, roommates.

The whole idea of gay marriage and civil unions is that some homosexuals want to make a legally binding lifetime commitment to each other, promoting fidelity, stability and monogamy.

The Colson-Bennett amendment — and maybe the Musgrave amendment, too — would undermine such purposes. In fact, Colson-Bennett would encourage people to live together and not commit, further damaging the already-shaky institution of marriage.

The latest Pew Center poll indicates why Bush might be urged by his political advisers to “do something.”

Fifty-nine percent of U.S. adults oppose gay marriage, but 80 percent of evangelical Protestants oppose it. That is a group that Bush political guru Karl Rove has said did not fully turn out for Bush in 2000 and that he wants to energize in 2004.

While just 55 percent of Roman Catholics oppose gay marriage, Rove has been courting conservative Catholics most likely to follow the church hierarchy’s adamant opposition to gay marriage.

Only 51 percent of the public, according to Pew, oppose civil unions. The poll did not report numbers on religious opposition to unions, but it’s presumably high.

Instead of yielding to the right, Bush ideally could say that he believes in the sanctity of marriage, will uphold the 1996 Defense of Marriage Act (which gives states and the federal government the right not to honor gay marriages performed in one state) and believes that civil unions are a humanitarian alternative.

At some point, the Supreme Court presumably will have to rule which has precedence — DOMA and its 37 state copies or the “Full Faith and Credit” clause of the constitution, which requires the states to honor one another’s laws.

Were the high court to rule that marriages in Massachusetts must to be recognized in Mississippi, Bush might feel the need to favor a constitutional amendment — but that might come years after he has left office.

If Bush shows courageous and humanitarian restraint, the country can avoid an ugly 2004 fight over homosexuality and the Constitution can be saved from dealing with sexual preference. Then, the states could handle the matter, the way “federalist” Republicans usually say things should be done.