The Senate is bracing now for a vote on a constitutional amendment on marriage. Behind closed doors, the Republican leadership, including several chairmen and supposed conservative stalwarts, have reportedly expressed their resentment that they should be made to vote on an issue so vexing, so quick to release poisons into the political air. In the reaction of the Senate leadership we get a measure of the true state of the conservative political class in America–their want of confidence in making their own arguments and standing ground in the face of assaults from the media. (They bring to mind the line of the first Mayor Daley: “I have been vilified, I have been crucified, I have been…criticized!”) And yet, there is one person in the Senate who is never tagged with the least bit of responsibility for this straining business, or held to answer for the introduction of marriage as a dramatic, unsettling issue this political season.
The issue, after all, was the gift of Massachusetts–or rather of four judges, backed with all of the passion of liberal Democrats in that state, who wished to lead the nation to the next rights frontier. John Kerry is now the preeminent Democrat in Massachusetts. Clearly he did not welcome this issue as an intrusion into the presidential campaign, but the decision was brought forth by his friends, and it is his party that houses those most passionate in their commitment to the rightness of same-sex marriage. Whether he likes it or not, John Kerry owns this issue. He will soon be the head of the Democratic party, and it is entirely apt that he be pressed to explain the position he has embroidered in his typical style–with nuances, inventive and implausible, covering brute facts.
JOHN N’ MITT
As everyone understands by now, a Kerry “explanation” is not always easy to follow. And here especially, with a matter so contentious, Kerry has sought to placate both sides with a stylish straddle. The undoing of that straddle, or the unraveling of his argument, would be fine political theater in itself. But as it is undone, it also reveals the strongest case for the constitutional amendment on marriage.
On one hand Kerry aligns himself with a majority of the public, in Massachusetts and the public, by affirming that marriage should involve only a man and a woman. But on the other hand he finds a dark political purpose in President Bush’s support for a constitutional amendment on marriage. Kerry has insisted that the question of marriage be reserved for the states. The people of Massachusetts may amend their constitution to preserve traditional marriage, but in good “federalist” form the country should not act to foreclose the freedom of people in any given state to be more accepting of gay marriage.
But if these are the ingredients in Kerry’s policy, why is Governor Mitt Romney standing alone now–taking all the political hits–when he is merely defending what is in effect Kerry’s position? The comparison with Romney becomes here a key to the puzzle. Romney supported a constitutional amendment in Massachusetts to override the judgment of the Supreme Judicial Court, and that seems to be in accord with Kerry’s position. But Kerry did not join Romney in seeking to have the court hold back its decision until voters could decide on the amendment. On May 17, the order of the court went into effect, and so did same-sex marriage.
Then Romney took his stand with the strict enforcement of the law. The partisans of the court claimed the judges were not acting politically. In that case, Romney insisted, the authorities in Massachusetts should enforce the law and only the law. He held that only couples resident in Massachusetts should be eligible for gay marriage.
The governor invoked a statute from 1913 barring the performance of marriages for visitors from states in which those marriages would be illegal. Some argue this law was passed to keep Massachusetts from becoming a center for interracial marriages and then projecting them onto the rest of the country. Others argue that the statute sprung from a genuine concern that Massachusetts would become an engine for changing the laws of marriage in other states. But even if there had been a motive in 1913 to avert interracial marriage, that motivation could not determine the meaning of the law. For the argument has been made, even more tellingly, that the Fourteenth Amendment was designed for the sake of protecting black people, newly delivered from slavery. If the Fourteenth Amendment could be confined to the motives behind its passage, it could not be used today as a lever for reaching discrimination against gays and lesbians, and overturning the traditional laws on marriage.
Governor Romney has been on firm ground, then, in demanding that registrars in the counties send him all applications for marriage filed by visitors from other states. That official insistence–backed by the prospect of legal sanctions–has been enough to make registrars hold back in caution, and give couples pause before they proclaim a marriage that may not hold up even in Massachusetts. But for this minimal gesture, holding strictly to the law, Romney has been reviled. If John Kerry is serious in his avowal that gay marriage should be left up to the states–that Massachusetts should not legislate for the rest of the country on this matter–then why is he is not large-natured enough to acknowledge that Romney’s policy is his own? And why is he not being subjected to the same scathing attacks now visited on the governor?
For Kerry, the straddle leads to even deeper contradictions. After all, the main device right now in preventing couples from carrying a same-sex marriage into other states is the Defense of Marriage Act, passed in 1996. That act came about when the courts in Hawaii were about to impose same-sex marriage there, giving rise to the prospect that couples would invoke the full-faith-and-credit clause of the Constitution to have their marriages recognized elsewhere as well. Under that clause, there is the presumption that a driver’s license granted in Maine will be honored in Illinois, or that a marriage contracted in Kentucky will be honored in Connecticut. A state could refuse, say, to honor an incestuous marriage if the public policy of the state showed a clear rejection of such marriage. But when it came to homosexual marriage, the courts were gradually denying the authority of the states to regard homosexual sex as standing on any lesser plane of legitimacy than the “sexuality imprinted in our natures,” the sexuality of relations between a man and a woman.
That trend was taken to its next phase last year when the Supreme Court struck down a Texas law on sodomy in Lawrence v. Texas. On the strength of that case, there is likely to be a challenge now to the Defense of Marriage Act. But even before it came to a challenge in the courts, John Kerry had voted against that act, denouncing it as a species of “gay bashing.” It becomes reasonable then to ask: Has he changed his mind on the Defense of Marriage Act? If so, isn’t this the time for the Republicans to compel him to acknowledge as much? If not, how will he hold to the position he has professed in favor of letting each state decide the matter of gay marriage for itself?
We must suspect that Kerry declared himself strongly in favor of this “federalist” position as a means of avoiding any concurrence with President Bush in favoring a constitutional amendment on marriage. But it should be clear that his position would be rendered hollow if the judges in the separate states could simply install same-sex marriage by judicial fiat. And that could be done quite easily if those judges merely employed the same reasoning used by the Supreme Judicial Court of Massachusetts: The court had invoked Lawrence v. Texas in arguing that the law could draw no adverse inference based on “sexual orientation.” Any federal court could invoke that case and reason in the same way. The court had also invoked the theme of equality before the law, in arguing that it was a matter of invidious discrimination to refuse equal access to marriage on the part of gay and lesbian couples. The notion of equality before the law could be found as implicit in the constitution of any state, or in any constitutional order.
Kerry has proclaimed himself in opposition to same-sex marriage, but no reporter has thought to ask him whether he rejected the reasoning of the court in Massachusetts in any of its holdings on this matter. For if he does not reject the reasoning of the court, it is hard to see what objection he would have to courts in any state using the same reasoning to produce the same result.
WHAT FEDERALIST SOLUTION?
Kerry has also fallen into the familiar groove of offering civil unions to gays and lesbians while reserving the title of marriage for the union of a man and woman. But the Supreme Judicial Court in Massachusetts revealed perhaps too much, too soon, when it explained why a compromise of that kind is not tenable. The argument of the court might be condensed in this way: If the law granted all of the privileges and benefits of marriage, but insisted that in the case of say dwarves
the arrangements would be called only “civil unions,” it would be hard to resist the implication that there was something demeaning about that class of people–something about dwarves that made them less worthy of the title of marriage. The truth that dare not speak its name is this: The arrangement of civil unions is geared to keep generating invidious discriminations in the way that the traditional laws of marriage do not. Kerry should know that any provision for civil unions is simply an invitation to the judges to strike down the traditional laws of marriage.
The inescapable problem here for Kerry is that, if he will not reject the reasoning of the courts, he cannot prevent the judges from taking matters into their own hands; and in that case, his position in favor of a “federalist” solution would be exposed as a cynical deception. The only arrangement that could preserve the decision in the hands of the people, and take it out of the control of the judges, is the arrangement for a national amendment on marriage–the amendment that Kerry has firmly rejected.
Of course, that constitutional amendment would “impose” a uniform definition of marriage on the entire country, but it would take the vote of 37 states in order to do so. If Kerry truly thinks that marriage must mean only the union of a man and woman, what is the problem now of securing that understanding of marriage, the understanding that has been in place for a couple of thousand years? Surely there is nothing novel here.
But at the same time, that understanding of marriage, fixed in the fundamental law, would still leave the states the wide latitude they have had in regulating marriage, and even in making provisions for civil unions.
Again, we ought to be clear: When people go into federal court and try to bring their marriage from Massachusetts into their own home state, they are nationalizing the issue; they are bringing in the federal Constitution. Senator Kerry reflects the curious contradiction of many public figures: He opposes the appeal to the federal Constitution for the sake of preserving marriage as we know it, but he would allow activists to appeal to the Constitution for the sake of extending gay and lesbian marriage to the states.
Until Senator Kerry gets clear then on his own position, he will remain a covert accomplice in this latest project of Massachusetts. As for Governor Romney, it would entirely apt for him now to speak the words of Groucho Marx, said of Margaret Dumont’s character: “I was fighting for her honor–which is more than she ever did.” Romney has been enforcing Kerry’s policy, which is more than Kerry has done. It is time for Kerry to say something.
–Hadley Arkes is the Ney professor of American institutions at Amherst College.