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the July 23 issue, the editors ("In
Need of Amendment") and Robert P. George ("The 28th
Amendment") argue for a constitutional amendment banning same-sex
marriage. Conservatives ought to think harder before heading down
this path. Same-sex marriage is not only good policy, it is good
conservative policy.
Conservatives
know the importance of long-term, committed relationships for both
individual happiness and social stability. They understand that
no other form of commitment can touch the durability and depth of
marriage. They realize that opposite-sex marriage is not an option
for homosexuals. So why not draw homosexuals into the embrace of
marriage, with all its benefits? Because, says George, same-sex
marriage would wreck the institution.
Neither George
nor the editors offer argument or evidence to support this essential
claim. The closest they come is George's flat assertion that marriage
"is intelligible and defensible as a one-flesh union whose
character and value give a man and a woman moral reasons" to
pledge fidelity and permanence. But that, of course, is nothing
more than a tautology: Same-sex marriage can't be marriage because
it's same-sex.
Actually, same-sex
marriage would strengthen marriage by making it a universal and
unique aspiration, by signaling that marriage is for everyone, and
that all who want the benefits of marriage should get married. Before
banning same-sex marriage, George and the editors should consider
the likely real-world result: a profusion of partnership benefits
and other forms of "lite marriage" that would turn marriage
into just another bonbon in a candy box of legal and financial arrangements.
Barring millions
of Americans from signing the most ennobling of all pacts —
the commitment to love and care for another human being, till death
do you part — is not only unjust but unwise, for all the reasons
that separating love from marriage has always been unwise. A robust
public debate on an amendment banning gay marriage will bring a
lot of conservatives around to what is, at bottom, a deeply conservative
idea that is also deeply consonant with the American idea.
Jonathan Rauch
Washington, D.C.
'm
shocked that National Review, long a defender of constitutional
conservatism, should have so blithely supported such an anticonservative
notion as this constitutional amendment. Such amendments should
not be rashly considered, let alone rashly endorsed. This is particularly
true of an amendment that tramples on any notion of federalism,
that egregiously violates states' rights, and that seeks to impose
a uniform settlement on an entire country in perpetuity. The amendment
is more typical of the excesses of modern liberalism than anything
vaguely conservative.
In the United
States, marriage is now, and has always been, a state matter. The
federal government and the Constitution have no role in this area
— as a matter of history and as a matter of law. Even during
the ordeal of the battle over miscegenation laws, the federal government
never intervened to impose a settlement on the states as they fought
among themselves about who had a right to marry and who did not.
This long and settled constitutional practice with regard to marriage
was trashed in 1996, when the Republican Congress and President
Clinton, for nakedly political reasons in an election year, passed
the first and last federal law regulating marriage, the Defense
of Marriage Act. But even then, that law allowed states that wanted
to experiment with same-sex marriage to have a chance to do so.
Since then, two states have dealt with the matter definitively:
Hawaii and Vermont. Both states were presented with the issue by
the courts. This is not unusual. Important matters of civil rights
are often first broached in the courts. In Hawaii, the legislature
and voters overruled the court. In Vermont, the legislators and
voters backed the court. There was no judicial tyranny. The voters
in both states had a chance to deliberate and vote on the matter
— and they came to different conclusions. That's the beauty
of federalism, as the Founding Fathers recognized. Why, in this
instance, can you not return to the true conservative position and
recognize it yourselves?
Andrew Sullivan
Washington, D.C.
 he
editors reply: On the traditional understanding, marriage
is an intrinsic good. It is a one-flesh union integrated around
acts that are procreative in type: acts, that is, in which a man
and woman meet the behavioral requirements of procreation. In these
acts, a man and woman achieve an organic unity; they become a single
reproductive principle. Such marital acts can bring into being children
who participate in the organic community thus created and bring
it toward perfection. Because marital unity was traditionally understood
to be an intrinsic good, fidelity was held to be obligatory even
when one or both of the married parties wished otherwise.
This understanding
makes some features of traditional marriage law comprehensible;
for example, the fact that sexual acts that are not procreative
in type could not consummate a marriage. Note well that this rule
applied to heterosexuals; the understanding of marriage that included
the rule was not cooked up yesterday for the purpose of excluding
homosexuals. But two people of the same sex obviously cannot become
one flesh.
Jonathan Rauch
seemingly concedes the point, but slights its significance. To say
that "same-sex marriage" cannot be marriage because it
is same-sex, he writes, is "nothing more than a tautology."
Well, yes. An argument about the definition of something always
involves tautology.
Professor George
has carefully explained and defended the traditional understanding
of marriage in several venues — e.g., The Yale Law Journal,
The Georgetown Law Journal, and the American Journal of
Jurisprudence. He and other philosophical defenders of that
understanding have repeatedly put to advocates of same-sex "marriage"
a question: If marriage is not to be understood as a one-flesh unity,
what grounds of moral principle can there be for rejecting infidelity
and other offenses against marital unity? The liberal understanding
reduces marriage to an arrangement that is valued, not as an intrinsic
good, but merely to the extent that it provides emotional and other
satisfactions to couples. (In ruling for same-sex marriage, the
Hawaii supreme court went so far in the direction of denying any
connection between marriage and reproduction — or even sex
— that it held that two heterosexual men could get hitched
in order to win legal benefits.)
The liberal
understanding allows, at best, only the weakest prudential arguments
against infidelity. So far, advocates of same-sex marriage have
not even attempted to formulate a principled defense of monogamy.
When Andrew Sullivan defends the "spirituality" of sex
with strangers, as he did in Salon two years ago, does Rauch
have the resources to argue that he is wrong? In any case, we welcome
Rauch as an ally in fighting partnership benefits and other policies
that would weaken marriage, even as we disagree about whether same-sex
marriage falls into that category.
In his own
letter, Sullivan attempts to make an argument against a federal
marriage amendment based not on the virtues of same-sex marriage
but on the virtues of federalism. The attempt is either naïve
or disingenuous. He is, in the first place, wrong on his legal history.
In the 1967 case of Loving v. Virginia, the Supreme
Court — part of the federal government — struck down state
prohibitions on interracial marriage as a violation of the Equal
Protection Clause of the Constitution. It is a case that Sullivan
has himself cited while arguing that laws restricting marriage to
heterosexual couples are as odious as miscegenation laws. That comparison
— implicit as well in Sullivan's description of same-sex marriage
as a "civil rights" imperative — makes us doubt that
Sullivan would really oppose a federal settlement on marriage if
his side were imposing it.
Which, by the
way, it is. As explained both in our editorial and in George's article,
the proposed constitutional amendment is designed precisely to thwart
a campaign in state and federal courts to impose same-sex marriage
nationally. If Sullivan is in principle against the imposition of
a national policy, he should come out against the legal strategy
being pursued by the same-sex marriage movement of which he is a
major spokesman.
Instead, Sullivan
ignores the clear import of that strategy. Activists chose to bring
their case in Vermont, for example, because it is extremely difficult
for voters to amend the state's constitution but easy for judges
to do so surreptitiously. Vermont's legislature "backed"
the court because under the state constitution it had no effective
way to resist; Vermont's people were never given a chance to vote
on the subject, and nobody doubts that they would have voted against
same-sex unions if they had been.
Sullivan finds
nothing objectionable in this procedure. He seems to be arguing
that if a state's institutions enable traditionalist voters to overrule
the courts, as in Hawaii, that's okay; and if not, as in Vermont,
that's okay too. Luckily, America's federalist system gives the
people as a whole the same power Hawaii voters had: the power to
overrule the judicial class by amending the Constitution. A federal
marriage amendment would have several advantages over the national
marriage policy we are likely to suffer in its absence. It would
be more likely to embody sound moral principles; it would be less
radical in character; and it would reflect the consensus of the
people rather than the whims of the judges.
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