Aug. 4, 2004

Till Death Do Us Part

It’s an odd thing about same-sex marriage: Voters hate it and judges love it. This would explain why states like Missouri have seen fit to amend their constitutions to define marriage as a legally binding union between a man and a woman, and why voters increasingly rage against jurisprudes like King County (Wash.) Superior Court Judge William K. Downing, who decreed Wednesday that the U-S Constitution confers marital rites, rights and privileges upon gay and lesbian couples.

It’s telling that while not a single state has agreed to legislation that would broaden “marriage” to include anything other than a man and woman, courts in Massachusetts, Vermont, Washington and elsewhere have decided to lay down the law in defiance of established law and clear public opposition. The only other professions that seem similarly inclined are the entertainment industry and the media.

Note, for instance that the press (including the Fox News website) describes traditional-marriage legislation as “anti-gay marriage,” rather than an affirmation of traditional marriage. To describe marriage-affirming laws and constitutional amendments as “anti-gay” is to commit a subtle form of advocacy. Nobody likes to be cast as “anti-” anything, and the “anti-gay” depiction insinuates that legislators and voters have indulged in acts of revanchist bigotry. (By way of contrast, note that the press never depicts judicial acts decreeing the validity of same-sex marriages as “anti-husband-and-wife.”)

In fact, Marriage-affirming measures are in no necessary sense “anti-gay.” Increasingly, however, they are serving as warnings to activist judges – practitioners of a craft that is supposed to venerate tradition and execrate the blithe destruction of precedent! – who are tossing out millennia of tradition and case law, in order to remake the world in an image more appealing to them.

When judges “settle” contentious issues by diktat, they only ensure a period of festering discord (consider what has happened with abortion since the Supreme Court “decided” the matter in 1973). Most Americans now hold a hybrid view of the same-sex unions. They want “marriage” to retain its traditional definition and status, but would be willing to confer spousal benefits on same-sex couples who agree to be bound by the legal agreements and restraints that apply to husbands and wives. Chances are, a public debate, conducted over time in legislatures and in election campaigns, would produce a result. But that may never happen – because judges, in their zeal to impose their own views of “tolerance” and “due process” could actually make life more difficult for same-sex partners who wish to plight their troths.

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