In the episode of Uncommon Knowledge that he taped last summer, Judge Robert Bork predicted today’s decision in Massachusetts–and called for a constitutional amendment. (For the complete transcript, go here.)
PETER ROBINSON: “Today’s opinion [Justice Scalia writes in his dissent from the Lawrence decision] dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions.” A decade from now, will the Supreme Court have mandated homosexual marriage?
JUDGE BORK: I think it’s less than a decade. Could happen in two ways. One is Massachusetts is about to announce a constitutional right under their constitution to homosexual marriage. At that point, people will come to Massachusetts, get married, go back to their home states. There is the full faith in credit clause, which says the other state, must give credit to the Massachusetts–there will be a fight about the constitutionality and an attempt to stop that. The other route–and that may spread across the country by state court action and by full faith and credit clause. The other route is direct appeal to the Supreme Court of the United States, which I think, is ready to give a right to homosexual marriage, at least will be ready in a few years. The only way to stop this is–there is a proposed constitutional amendment saying that marriage is something between a man and a woman. And you–and no statute or constitutional claim may be interpreted to say same sex marriages is a marriage. Now it doesn’t try to stop civil unions. If legislatures want to approve civil unions, it’s up to them. I would oppose that but it’s up to them. But marriage itself is too important I think to be sacrificed in the way that homosexual marriage would do. Now it must be said that heterosexuals have already done enormous damage to the marriage with their laws about no-fault divorce and that kind of thing so that the whole blame for the damage to the current situation of marriage and the family is certainly not to fall on homosexuals. But this would be a decisive step I think.
ROBINSON: Unless there’s an amendment to the Constitution, the Court will indeed mandate homosexual marriage?
BORK: I think so.
ROBINSON: Do you then support such an amendment?
ROBINSON: And do you think that such amendment is likely to pass?
BORK: It’s iffy. The fact is that the opposition to homosexual marriage is eroding in the public. There’s still a majority doesn’t like it, thinks it’s bad. But percentages are not as high as they used to be. And that is, in part, because of a brilliant campaign homosexual activists have waged to convince us that homosexuality is just like heterosexuality, just a question of taste, question of preference and no difference. I think that’s not true. But it’s having its effect. It may be that the public will not be sufficiently alarmed to adopt a constitutional amendment.
A nicely framed question: Is the public sufficiently alarmed?