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Yet three days later, on December 6, under pressure of my argument in "Responding to Sullivan," Sullivan let it be known that he himself hopes and believes that the Supreme Court might one day, under the equal-protection clause of the Constitution, impose gay marriage on the nation. In other words, after years of assuring conservatives that it is an impossibility, Sullivan now admits that court-imposed national gay marriage is not only a possibility, but something he favors! The parrot, it would seem, has risen. Sullivan tries to cover over the significance of his admission by claiming that the Supreme Court won't nationalize gay marriage until sometime in the far distant future. That assurance is utterly unreliable. Recall that the Court declined to force the Boy Scouts to admit homosexuals, by only a single vote. Trouble with the president's war on terror, public impatience over an occupation of Iraq, or a serious economic downturn could easily bring a Democratic president and a more liberal Supreme Court. Under pressure from a massive media campaign on behalf of the hundreds — or thousands — of gay couples whose Massachusetts marriages will be unrecognized elsewhere, such a Court would almost certainly nationalize gay marriage. In fact, the monumental social battle that gay marriage in Massachusetts will surely set off might force even the current Court, however reluctantly, to nationalize gay marriage. Sullivan claims that I have misled readers through a form of "bait and switch." According to Sullivan, I initially argued that the Supreme Court would nationalize gay marriage through the Constitution's full-faith-and-credit clause. But now, says Sullivan, confronted by his supposedly iron-clad legal evidence that gay marriage cannot be nationalized on such grounds, I have reverted to an argument based on the equal-protection clause. Sullivan is flat-out wrong. He has either been negligent, or has boldly and blatantly ignored the plain language of my initial piece on this issue. I have not in any way changed my argument from full-faith-and-credit to equal-protection grounds. In "The Coming Battle," I clearly stated that gay marriage could be nationalized on either full-faith-and-credit or equal-protection grounds. Here is a quote from that piece, "Powerful constitutional challenges to DOMA on equal-protection-clause grounds will also be filed just as soon as gay marriage is legalized in a single state."
In all of his recent posts on this topic, Sullivan has simply ignored my clear invocation of the equal-protection issue in "The Coming Battle." His tactic has been to pretend that I spoke of full-faith-and-credit alone, and then to confront my full-faith-and-credit argument with a law review article by Larry Kramer that supposedly proves that nationalized gay marriage on full-faith-and-credit grounds is impossible. In point of fact, well over a year ago, in "The Right Balance," I refuted Sullivan's claim that the Larry Kramer law-review article proves that nationalized gay marriage on full-faith-and-credit grounds is an impossibility. Only last week I called on Sullivan to respond to my arguments in that piece, but he continues to pretend that I have somehow been scared into changing my views by an argument that I actually addressed and refuted over a year ago. According to Sullivan, Professor Larry Kramer establishes that a legal principle called "the public policy exception" will enable any state to resist recognition of gay marriages performed in other states. With "the public policy exception" doctrine in hand, says Sullivan, the full-faith-and-credit route to nationalization supposedly poses no danger. But as I show in "The Right Balance," Kramer himself believes that the public-policy exception doctrine is unconstitutional, and that it can and should be abolished. So the very protections that Sullivan points to are deemed to be unconstitutional by the very legal expert Sullivan relies on! More than that, Kramer's claim that the public-policy exception might stand up against the full-faith-and-credit clause is a political judgment, not a legal one. And the politics of gay marriage has changed substantially in the years since Kramer wrote. So the truth is, the Larry Kramer law-review article in no way proves that gay marriage cannot or will not be nationalized on full-faith-and-credit grounds. If Sullivan were conducting this argument properly, he would respond to these points, all of which I raised over a year ago, and called to his attention again only last week. Sullivan has accused me (falsely, I have shown) of playing bait and switch, but the truth is, Sullivan himself has been playing a double game. For a year and-a-half, Sullivan has been assuring conservatives that nationalized gay marriage was impossible. Yet all the while, he favored court imposed national gay marriage himself. Only under pressure of my arguments has Sullivan finally acknowledged this. Sullivan has been using his well earned credibility with conservatives to persuade them that support for the Federal Marriage Amendment is unnecessary, even though he himself would like to see the Supreme Court force gay marriage on the country on grounds of equal protection. Sullivan knows that only the Federal Marriage Amendment can thwart that plan. All this may account for Sullivan's silence on the equal-protection issue until our recent debate, and for Sullivan's refusal to acknowledge that I myself raised the equal-protection issue in "The Coming Battle." But the truth is, if Massachusetts legalizes gay marriage, Sullivan's hopes of holding conservatives back with a (bogus) federalism argument will quickly collapse. That's because the overwhelming majority of those who favor gay marriage care nothing for federalism. Once conservatives see this, they will quickly realize that the Federal Marriage Amendment is the last best hope for holding off national gay marriage. The moment Massachusetts acts, be assured that supporters of gay marriage will kick into high gear with an attempt to nationalize gay marriage. The gay couples who flood into Massachusetts to marry will not return home to study the Federalist Papers. They will instead organize a public campaign to force every state to recognize their marriages. It is certain that they will ask the courts to overturn the Defense of Marriage Act on constitutional grounds. In that battle, every available legal argument will be made. Equal-protection claims will be the strongest, but as I have shown, full-faith-and-credit arguments will also be made, and may well succeed. If Andrew Sullivan doubts this, let him finally acknowledge and respond to my refutation of his points about the work of Professor Larry Kramer, and of his larger argument on federalism. I repeat. If Andrew Sullivan wishes to call my arguments on gay marriage and federalism into question, let him acknowledge and respond to the points I make in "The Right Balance. If he does not or cannot do so, then despite appearances, Andrew Sullivan is not really debating me at all. He is merely having a dialogue with a figure of his imagination. While Sullivan has appeared to respond to me directly on the question of federalism, he has linked to blogger Julian Sanchez's in hopes of rebutting my substantive arguments on gay marriage in "The Coming Battle." This is important, because it puts Sullivan in league with someone who obviously has no problem at all with polygamy or polyamory. Sullivan himself has been at pains to deride the notion that polygamy or polyamory might follow in the wake of gay marriage, but Sanchez provides the perfect illustration of how gay marriage means group marriage, and thus the effective end of marriage itself. For the sake of argument alone, Sanchez claims that any problems with polygamy or polyamory would be grounds for banning those practices. Yet I showed in "The Coming Battle," and have shown repeatedly, that the rights-based grounds on which we are being given gay marriage will not be able to exclude polygamy or polyamory. Sanchez chastises me for my "breathtaking stupidity," my "heroic inanity," my being "brain dead," etc., but his litany of insults does little to disguise the superficiality of his argument. Sanchez admits that he doesn't know what to do with my claim that the analogy between civil rights and gay marriage is flawed. The point of my earlier writings on gay marriage (of which Sanchez appears to be ignorant) is that skin color has no effect on the functioning of marriage as an institution, but that sexual orientation will. Sanchez needs to address the arguments I make in my Commentary article, "What Is Wrong With Gay Marriage," in the gay-marriage debate, and in pieces like "Gay in Hollywood." But of course, he does not. Sanchez also seems to be unfamiliar with the well-established idea that the state's "compelling interest" in marriage, and in the children marriage produces, entitles it to abandon strict neutrality in structuring this institution. To his great credit, Andrew Sullivan has been conducting a brilliant campaign against the New York Times for its hyping of a story about a prestigious golf club that does not admit women. (Despite our differences on gay marriage, I have always been — and remain — an unabashed fan of Sullivan's work.) Here's a case where the Times is motivated by a false analogy between skin color and gender. In some important contexts, gender matters, and should matter, in a way that skin color does not. That's why single-sex clubs, schools, or the exclusion of women from combat, are not really analogous to clubs, schools, or armies that separate the races. But if gender and skin color can be different in the matter of private clubs, schools, and the military, why can't skin color and sexual orientation be different with respect to marriage? Mr. Sanchez has little regard for the health of marriage as an institution. The already alarming divorce rate is for him, nothing but proof that polygamy or gay marriage need not be feared. I take a different view. I favor the president's efforts to strengthen traditional marriage, thus reducing both the divorce rate, and the rate of out of wedlock births. In a sense, that is an argument against adoption, just as Sanchez claims. Adoption and/or single parenting are sometimes necessary, and can often be happy. But our goal should be to strengthen marriage, reduce out of wedlock birth, and thus make adoption and single parenting less necessary than they now are. The Sanchez-Sullivan way will bring us polygamy, polyamory, and an increase, rather than a decrease, in social chaos for our children. It is disturbing, and revealing, that Sullivan has linked an argument of this sort as a way of responding (and of not responding) to me. — Stanley Kurtz is a research fellow at the Hoover Institution at Stanford University. |
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but surely, Andrew Sullivan's actual position on gay marriage and federalism
enters into the light. On December 3 (inspired by Monty Python's dead-parrot
routine), this is how Sullivan characterized my warning that gay marriage
in Massachusetts could be imposed on the whole country:
