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Circle-Squaring by Daschle
The South Dakota senator and marriage.


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William F. Buckley Jr.

Senator Daschle’s face would show the strain, except that his face has no strains left to show, looking as he does as the condemned prisoner on the last day of his reprieve. The special torment this time around is the work of Republican John Thune, a former member of Congress whose challenge to the Senate Democratic leader rests in part on the matter of a Constitutional amendment.

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The measure to prohibit same-sex marriage was defeated on July 14, but nobody thinks it is permanently asleep and there are forces raring to bring it to life again–after the next election.

Now consider Senator Daschle’s plight. Most of the leaders in his party who oppose the amendment do so on the grounds that it impairs gay rights. They aren’t saying exactly that, but the essence of what moves them is what they’d call one more step in gay liberation. If non-gays can marry, so should gays be permitted to “marry.”

But that by no means is the position being taken by Senator Daschle in his nervous fight to survive. He says the amendment is “unnecessary.” Why? Because South Dakota law prohibits same-sex marriage, and the federal Defense of Marriage Act means South Dakota does not have to recognize same-sex marriages from other states.

If it were actually so, the movement to amend the Constitution would indeed be unnecessary. But it isn’t so because there are judicial activists in the land who tend to edge the argument about marriage over not into what state legislatures have done, but into the great sunlight of rights that inhere in us at birth, endowments of nature/philosophy/the Bill of Rights/the Areopagitica, whatever.

That is the line the judicial activists will take. The political question arose from the Supreme Judicial Court of the Commonwealth of Massachusetts. It decided that the State Constitution grants organic rights which can’t be taken away from residents of Massachusetts, among them to marry anybody you like, beginning with those of the same-sex.

It may be that Senator Daschle has shelter enough to weather the storm by citing the Defense of Marriage Act. But he will certainly not say that if the Supreme Court nullifies that act, permitting same-sex marriages in South Dakota, Tom Daschle will fight the Court tooth and nail.

Using what political weapons? There wouldn’t be any, if the Court grandly ruled that same-sex marriage, like abortion, is an inherent right. If that happened, every state would be bound by the full faith and credit clause of the Constitution to recognize same-sex marriages contracted in any other state.

It is by no means inconsistent for an observer to fight strongly for the Constitutional amendment, which should be called, “The Division of Powers Amendment,” with the entirely modest goal of confirming that the legislatures should rule, not the courts, if there is to be a fundamental metamorphosis in the meaning of marriage. There is nothing in the Constitution that deprives a state legislature of the right to endow an attachment to one’s dog, calling it a marriage and to specifying appropriate benefits. But any such act should be traceable to the legislature that lost its head, not to the court that had an epiphany about dog rights.

Well, we have the first pass at corrective congressional action and the battlefield is white-hot for the next round. Seven states have approved amendments that will be put before voters this year, giving us some idea of what depth there is in a call for Constitutional support for the Defense of Marriage Act.

Congress might have acted, and still has the authority to do so, to forego an amendment and exercise instead its authority to specify appropriate jurisdictions. It could say: The Courts are not to rule on matters that have to do with the definition of marriage.

But both sides seem eager to move on. The Democrats believe that the reformers have gone too far, the Republicans are anxious to debate the question. The general acceptance of marriage as a good and useful, however evanescent, tie between men and women is a political plank of some strength. Which would not alter the legitimacy of a call by gay couples for civil considerations of an appropriate kind.



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