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Wednesday, November 27, 2002

The Marriage Definition Battle-There's been more than a bit of writing in the conservative corner of the Blogosphere on the possibility of Massachusetts' supreme court mandating homosexual marriage. I'll point to this Chris Burgwald post for starters, and add more links as I rediscover the writers. Chris points to this Stanley Kurtz article yesterday as a good starting point. Even though Kurtz reports that almost three-quarters of the states have one-man-one-woman marriage laws on the books, the problem lies in Article IV, section 1 of the US Constitution
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
That means that marriages in one state are assumed to be valid in all states. When we moved to Florida, Florida couldn't second-guess our Michigan marriage license. That general theory would make a Massachusetts gay marriage valid nationwide. Same-sex couples would then flock to the Bay State to get hitched and force their home states to accept their new marital status. Do we have to change the constitution to avert this? The US has passed a Defense of Marriage Act back in 1996 stating that one-man-one-woman was the federal law and that other states didn't have to give any benefits of marriage to same-sex marriages from another state. The trick is whether that is constitutional. If you look at Article IV, section 1 again, note the last sentence; Congress can prescribe the effect of the acts of states. That's something I could see O'Connor backing up on appeal, making a constitutional amendment unnecessary. If we need to go the amendment route, putting one-man-one-woman marriage into the constitution, would we have a two-thirds majority in both houses? I think so, but the race to 290 in the House might be close. Would we have three-quarters of the states? Most likely. The debate will help Republicans, for the swing voter is heterosexist but doesn't want to be cast as a homophobe. The swing voter is more comfortable with the traditionalist view of the conservatives than with the "if it feels good, please wear a condom while doing it" view of the liberals, but doesn't want to interfere with other people's lives as long as it doesn't effect him. This effects the swing voter by giving legal equality to same-sex couples, raising his insurance premiums (more married couples with a tendency for AIDS) and making products more expensive (companies passing costs of the extra marriages on). I'd say it might raise taxes, but the marriage penalty in the tax code might make it a revenue-positive thing. Joe Sixpack (I'm thinking of the late, great Slats Grobnik, Mike Royko's alter ego) then would be able to see that the liberals are indirectly raiding his paycheck in order to support their gay buddies. Joe's also a bit old-school; he might not be much of a church-goer, but he knows right from wrong, and this just isn't right. He might not be in the mood to start quoting Romans 1, but the idea of gay marriage gives him a bad feeling in his stomach, it ain't natural. He gets along with the homosexuals he runs into day-to-day, but he knows what marriage is supposed to be, and that ain't it. Conservatives (and sensible liberals and libertarians) should appeal to that gut instinct in most people in a refined way. People are naturally heterosexist, in that they think that heterosexuality is the normal and prefered state. If you do too-much gay-bashing, you will rub against the egalitarian streak in the swing voter and make him harder to reach. However, if you play up the one-man-one-woman angle rather than bash the alternatives, you'll reach a lot of people. This is a fight that can be won as long as we don't let the rednecks run the show. Kurtz points out in his piece that taking down the one-woman-one-man concept of marriage will likely bust open other constraints, legalizing various plural marriage forms and giving public sanction to dysfunctional family forms. That points out the need for defending the status-quo. Some will argue that allowing for same-sex marriage will help domesticate the wild lifestyles of many homosexual guys. However, the destructive power of the message that homosexuality is a legal and acceptable alternative makes it undesirable. Life will go on if such marriages are legalized, but it will go on easier without them.

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