February 24, 2004

Making the same point, less enigmatically. Someone asked me to restate that first post today and make it clearer, so I'm going to try to put it as plainly as I can. First, eventually the constitutional amendment will be defeated. It's only a question of when. President Bush has no role in the amendment process, other than to give an opinion, and he's done that, presumably with the hope of going on to other issues, issues of his choosing. The process is now in Congress, and chances are it will never get out of Congress, because a two-thirds vote of both houses is needed and because, I'm guessing, few members of Congress really want all the heat that it will generate. Maybe it will emerge from Congress, and then it will go on to the state legislatures where it will inevitably, eventually, die. (I note that the Musgrave proposal in Congress does not have a deadline for ratification, so conceivably it could remain on life support indefinitely, but in any case, it will never become an amendment to the Constitution.)

So the real question is what effect will the amendment process have on the political issue. The futile amendment process will go on, and meanwhile the political debate will continue, but the nature of that debate will be affected by the fact that an effort is taking place to amend the Constitution to add a provision that will, for the first time in American history, diminish the aspirations for equality of a particular group. That effort will be a new thing to talk about, and gay rights advocates will portray that effort as mean-spirited and out of keeping with the rest of the Constitution. Thus, even though the amendment is designed to deprive gay rights proponents of something they seek, the amendment effort provides them with new opportunities to portray the opposition in a negative light. I think Americans who have not taken sides or who may feel a bit shocked by what is happening in San Francisco will balk at the idea of an exclusionary amendment in the Constitution. The all-powerful moderate Americans will be affected by the argument that it's wrong to actively exclude the underdog and it's wrong to put something negative in the Constitution.

I realize proponents will say they are doing something positive: protecting marriage. But they are having a heck of a time trying to express how marriage is being attacked. The institution of marriage they are purporting to protect is an abstraction. It is turning out to be very hard to explain that idea to people who don't already agree with them.

Finally, what did I mean by predicting that that there would be a simultaneous "departure of arguments about overreaching activist judges thwarting democratic choice"? Admittedly, this is the most enigmatic part of the post. What I meant to say is that so far the spotlight has been on a few bold judges (and a mayor), who seem to be taking things into their own hands, and the arguments have been about whether they properly have the power to do what they are doing or whether more democratic processes should govern. But if the spotlight shifts to the constitutional amendment, what people will start talking about is whether there should be a permanent, uniform national rule defining marriage. Judges announcing a right to gay marriage may be getting ahead of the political process, and that has provoked a lot of outrage and criticism. But the amendment goes to the other extreme, denying states the opportunity to experiment and to govern matters of marriage as they traditionally have. And by making the national law a matter of constitutional law, and not merely statutory law, the new amendment even deprives Congress of the ability to respond over time to the changing preferences of the people. These new issues having to do with the amendment will overshadow the arguments about activist judges, which, so far, have been the best arguments the opponents of gay marriage have had.

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