Gay Marriage Amendment

Sadly it has come to this. A wise law professor of mine gave his students two bits of important advice. The first, don't get caught holding the bag isn't applicable here. The second, Pigs Get Slaughtered is.

The shenanigans and hijinks of a greedy and impatient gay community, not content with the tremendous gains of the last few years, have grown more and more vocal and are now demanding full marital rights. In the face of opposition to this idea, they have resorted to sneaky judicial activism and outright contempt for the law in the loony kooky kook lands of Massachussets and San Francisco. As a result of these foolish, impatient, and petty actions, they are going to force a massive national debate on the subject and a concerted effort to change the constitution, with President Bush’s endorsement. Not only does the amendment stand a good chance of passing but the ensuing fight stands to roll back many (if not all) of the gains they have made as a community over the last two decades.

I have remained rather quiet on the issue of gay marriage. The reasons are many, but essentially, it is because the issue has little effect on me. As a libertarian, I generally believe we are each free to do what we want as long as our actions don't directly hurt others. To that end, I have no problem with homosexual's doing what they do or referring to themselves as married. I appreciate the Gay community's desire for mainstream and legal/governmental acceptance of their marriage and find it understandable on both a financial and an emotional level. Being married I am free to enjoy all the benefits of society and can't even begin to imagine what life without them might be like. However, many people for entirely rational (and for that case both historical and biological) reasons are strongly opposed to the idea of gay marriage and as a result, the constitution stands a good chance of being amended. Whenever that occurs, and the the actions of one group threaten to undermine the rights of many (and any effort to Amend the constitution is rife with risk of this sort) I have to speak up.

While a libertarian, and fan of "stirring things up" I am particularly cautious when changing a fundamental law and trait of human relations that has reached across all societies and cultures for as long as humans walked on the earth. In other words, billions of years of precedent should not be thrown out the window in the course of a few months (actually, the debate has gone on much longer, and I've been aware of it dating back at least to the mid 1990s, before Vermont to a Hawaiian Supreme Court case, and to Scandinavia before that).

Before the recent hijinks, I thought that mainstream acceptance of gay marriage was bound to happen eventually, just not for a few more years. By forcing the issue now though, these activists are going to ensure that gay marriages (and perhaps even civil unions) are not recognized. As someone said in the debate (I'll post the link when I find it) when 2.5% of the country begins to forcefully dictate its terms to the other 97.5%, they are always crushed like a grape.

What I have always felt was a better strategic move for the gay community on the issue (especially in light of the Robinson fiasco with the Episcopal Church) is to force the issue of gay marriage not through equal protection but under the much stronger Freedom of Religion clause in the First Amendment. Instead of forcing societies hand, and relying on the poorly constructed and reasoned fiats of judicial activists, Gays should have instead sought marriage within an accepted mainstream church (as much as it annoys me, the Episcopal Church would have been the most welcoming target of this type of strategy). Once married by a church, any federal or state prohibition on the recognition becomes much more difficult to sustain. As a result, it would become easier and far less controversial for any court to make a well reasoned and properly constructed defense of the 1st Amendment's Freedom of Religion clause and Congress and the President would be far more loath to tinker with the Bill of Rights (though you never known, the Democratic Party has been seeking to repeal the Second Amendment for most of my life)

On the related issue of the Episcopal Church's anointment of Gay Bishop Robinson, I've been very concerned that his appointment was in direct violation of the Church's cannons and rules (not to mention the bible itself). In light of how powerful the influence of gay and liberal activists seem to be within the Church, the same result could have been achieved without creating such massive turmoil by simply seeking to amend the church's cannons. Once that occurred Robinson could have been considered for Bishop. While it would have taken slightly longer to occur, and a fight would still have ensued, it would not be nearly as bloody as the one occurring now within the Episcopal Church because one of the pillars of opposition to Robinson's appointment would have been removed - the Church’s own prohibition against gays. As it stands now, the prohibition remains in place with Robinson and the Anglican hierarchy thumbing their nose at the rule of church law.