Bush On Gay Marriage: Uncivil

This story from The New Republic was written by Andrew Sullivan.

"Good morning. The United States Senate this past week began an important discussion about the meaning of marriage. Senators are considering a constitutional amendment to protect the most fundamental institution of civilization, and to prevent it from being fundamentally redefined."

Let's start with a powerful word: "protect." The premise of Bush's argument is that civil marriage is under threat. But what exactly is the threat? Are some people trying to break up other people's marriages? Are people proposing to abolish civil marriage? Are divorce laws going to be loosened further? The answer is that a small group of citizens, far from wanting to threaten marriage, actually want to participate in it. Currently, they cannot marry in any meaningful sense. Allowing these people to get married, without affecting anyone else's marriage, is what the president believes is a threat. Why? How? The president doesn't answer. It is, for him, axiomatic that gay people, by having access to marriage rights, somehow inherently debase the institution. And he makes no argument why this should be the case.

Then there is his second premise: that allowing gay people to enter into civil marriage would "fundamentally redefine" marriage. In fact, of course, gay couples want to enter marriage as it is currently defined. And the fundamental redefinition of civil marriage to which the president refers occurred decades ago -- when contraception became widely available, severing the link between procreation and civil marriage; and with the advent of women's equality, ending the notion that civil marriage was a way in which men affirmed domestic control of women. If civil marriage is therefore not procreative and not based on distinct gender roles, on what grounds is the admission of gay people a "redefinition"? In fact, under the current definition of civil marriage, the exclusion of gay couples is a blinding anomaly.

"This difficult debate was forced upon our country by a few activist judges and local officials, who have taken it on themselves to change the meaning of marriage."

There is a missing element here. And that element is the emergence of the gay community in the last two decades -- the growing presence of gay people in American public life, their travails during a scarring epidemic, their experiences mothering and fathering children, their growing self-confidence and integration into society. You cannot understand the arrival of the marriage debate without this context, but since the president cannot even mention gay people by name, let alone understand or think about their social reality, he cannot see what is really going on. It remains a fact of the marriage movement that it was not pioneered by activists or judges. Leaders of the gay establishment resisted the grass roots push for equal marriage rights for years until they could avoid it no longer. This movement came from below; and the judges and elected officials were simply recognizing that society has changed. Bush, by contrast, is still acting as if we lived in the 1950s.

"In Massachusetts, four judges on the state's highest court have ordered the issuance of marriage licenses to applicants of the same gender. In San Francisco, city officials issued thousands of marriage licenses to people of the same gender, contrary to the California family code. Lawsuits in several states, including New Jersey, Florida, Nebraska, and Oregon, are also attempting to overturn the traditional definition of marriage by court order."

But in all of these cases, the states involved are grappling with the consequences, with no need for federal intervention. In Massachusetts, the people will get a chance to vote via a state constitutional amendment on whether gay relationships should be codified as civil marriages or civil unions. In California, the state court system is also adjudicating the legality of the San Francisco marriage licenses. Thirty-eight states have already passed bans on marriage rights for gays. The system is working -- just not fast enough to rally the fundamentalist base for Bush's reelection campaign.

"In 1996, Congress overwhelmingly passed the Defense of Marriage Act, and President Clinton signed it into law. That legislation defines marriage, for purposes of federal law, as a union between a man and a woman, and declares that no state is required to accept another state's definition of marriage. Yet an activist court that strikes down traditional marriage would have little problem striking down the Defense of Marriage Act. Overreaching judges could declare that all marriages recognized in Massachusetts or San Francisco be recognized as marriages everywhere else."

This is a huge leap of logic. No state court could demolish the Defense of Marriage Act (DOMA). Only the U.S. Supreme Court could do such a thing. And no serious legal scholar thinks such a case will arrive for the foreseeable future. Moreover, most legal scholars believe that the legal precedents all allow for non-recognition of out-of-state marriages. One other thing: The "activist" court in Massachusetts did not strike down traditional marriage. It simply argued that excluding gay couples from civil marriage violated the Commonwealth's guarantee of equal protection. Given the criteria for civil marriage -- criteria that gay couples meet in every respect, save for being gay -- it is hard to see how the court could have done otherwise.

"When judges insist on imposing their arbitrary will on the people, the only alternative left to the people is an amendment to the Constitution -- the only law a court cannot overturn."

So why should that process not take place on a state level? That's where the regulation of civil marriage has always been dealt with in America. In Massachusetts, that process is already underway -- with debates in the legislature and a state constitutional amendment on the ballot in 2006. Why should the federal Constitution intervene where it is neither necessary nor wanted? The answer is an obvious one. The religious right does not believe that any state should be allowed to consider equal marriage rights for gays, even if those marriages are restricted to the state in question. The existence of gay marriage anywhere offends their belief that homosexuals are mentally ill, or sinful, or a threat to society and the family. So they are prepared to abandon their conservative principles -- like waiting to see what happens in the courts, rather than preempting them, or letting states decide for themselves, or allowing society to continue its evolution on the subject (large majorities among the young take a very different view of gay people than many of their elders). That's why the notion that this amendment is somehow a defensive measure is so preposterous. It's an aggressive measure to enshrine certain religious beliefs into the Constitution, before society can evolve beyond them.

"A constitutional amendment should never be undertaken lightly -- yet to defend marriage, our nation has no other choice."

Piffle. It has many other choices. It could wait to see how the DOMA fares in the courts; it could wait to see how the voters in Massachusetts resolve the issue; it could leave the matter to the states; it could decide on civil unions at a federal level; it could consider an amendment that would merely codify the DOMA; and on and on. There are dozens of possible paths we could take. But Bush wants only one.

"A great deal is at stake in this matter. The union of a man and woman in marriage is the most enduring and important human institution, and the law can teach respect or disrespect for that institution. If our laws teach that marriage is the sacred commitment of a man and a woman, the basis of an orderly society, and the defining promise of a life, that strengthens the institution of marriage. If courts create their own arbitrary definition of marriage as a mere legal contract, and cut marriage off from its cultural, religious, and natural roots, then the meaning of marriage is lost, and the institution is weakened."

I know of no advocate of equal marriage rights who wants to demonstrate "disrespect" for the institution. If we disrespected it, why would we want to join it? And this is not a zero-sum game. No one is proposing that only gay people should be allowed to marry or that straight couples should not have the right. The law will still teach that "marriage is the sacred commitment of a man and a woman, the basis of an orderly society, and the defining promise of a life." But it would also teach that other human beings exist and that they too are worth including in our civil order, our society, and our families. How does that hurt anyone?

"The Massachusetts court, for example, has called marriage "an evolving paradigm." That sends a message to the next generation that marriage has no enduring meaning, and that ages of moral teaching and human experience have nothing to teach us about this institution."

But it is simply a fact that marriage is "an evolving paradigm." For the first millennium after Christ, Christianity didn't even recognize marriage as a sacrament. It was regarded as a purely secular matter of property ownership. Marriage also once meant the ownership of women by men. It was once permanent, and no divorce was possible. It was once restricted to couples of the same race. The notion that it has never changed is simply untrue. The only relevant question is whether the current change is a good one. The president doesn't answer that question. He simply asserts it, based on nothing but bad history and ignorance.

"For ages, in every culture, human beings have understood that traditional marriage is critical to the well-being of families."

Again, this is simply untrue. Many cultures, even today, practice polygamy. Many practice the marriage of children. Others condone "arranged marriages" even in America. I'm not saying that the two-person life-long model isn't the best one. I think it is. But I am saying that it's ridiculous to argue as a matter of fact that this model has always been embraced by "every culture." It hasn't.

"And because families pass along values and shape character, traditional marriage is also critical to the health of society. Our policies should aim to strengthen families, not undermine them. And changing the definition of traditional marriage will undermine the family structure."

How? How does including Mary Cheney, say, into the family of Dick and Lynne and her sister Liz, in any way undermine the Cheney family structure or the Bush family structure? Doesn't keeping some members of society permanently outside the institutions of their own families actually weaken the family? Doesn't forcing gay people into phony straight marriages undermine the family more effectively? Won't civil unions -- marriage-lite -- be far more dangerous to civil marriage, by providing an easy alternative option for gays and straights? Bush addresses none of these points. I doubt whether he has even considered them. He seems to believe that gay people and families are somehow separate entities. But gay people are born into families, grow up in them, and want to remain a part of them. This president wants to keep them permanently on the margins.

"On an issue of this great significance, opinions are strong and emotions run deep. All of us have a duty to conduct this discussion with civility and decency toward one another."

So why cannot this president even address his remarks to gay and lesbian Americans? Does he believe it is a mark of respect to speak and act as if they didn't exist? Why hasn't he met with any on this matter? Why can he not even offer the words of inclusion, let alone the policies? This is uncivil and indecent. And the president has set the example.

"All people deserve to have their voices heard. And that is exactly the purpose behind the constitutional amendment process. American democracy, not court orders, should decide the future of marriage in America."

Does the president believe that no question of civil rights should be left to the courts? And if he does, why shouldn't the legislatures and voters be able to decide this issue at the state, rather than the federal, level? Why couldn't this be achieved by 50 constitutional amendments, rather than one? Many voices have indeed been heard in the dozens of laws passed in state legislatures, restricting the rights of gay citizens, and in Virginia, denying them even the right to a private contract. No one is silencing them.

"The process has now begun in the Congress. I urge members of the House and Senate to pass, and send to the states for ratification, an amendment that defines marriage in the United States as a union of a man and woman as husband and wife."

But this, of course, is not the amendment that Bush favors. He backs an amendment that would not simply keep civil marriage as an exclusively heterosexual privilege. He backs one that would make unenforceable all "the legal incidents" of civil marriage for gay couples -- that is, civil unions and domestic partnerships. An amendment simply stating that heterosexuals alone can get married has been rejected by Bush and his allies, in favor of a far more sweeping attack on the basic protections of gay people across the country. In this respect, the president is simply lying. And anyone who takes a minute to read the amendment will see this beyond the shadow of a doubt.

Andrew Sullivan is a senior editor at TNR.