November 19, 2003

GAY MARRIAGE: So what do I think about a constitutional amendment banning gay marriage? I’m against it. And I disagree with Jim Miller that allowing gay marriage constitutes an “endorsement” of gay marriage, any more than allowing Anna Nicole Smith to marry constitutes state endorsement of marrying for money.

I suspect that proponents of the Amendment think that they need to lock in a bar against gay marriage while they still have the votes (though I rather doubt that they, in fact, do). I think that lock-in is a bad idea on that sort of thing. That’s also why I’m not crazy about this being done by judicial action. I would prefer to see gay marriage legalized via legislation, which I think will happen anyway in the not-too-distant future. But it’s easy for me to take the long view on this, since I’m not a gay person who wants to get married. (Eugene Volokh has a, typically, more refined take on this).

Perhaps it’s a blind spot on my part, but I just don’t see how gay marriage threatens heterosexual marriage. It seems to me that it’s the opposite, and that gay marriage will strengthen marriage overall. And I do think that the Massachusetts opinion is entirely defensible, as I said yesterday. Indeed, had I been on that Court I might have voted that way — though I probably would have written the opinion in terms of limitations on governmental power, rather than expansive notions of equality — had the case been before me. [There goes your shot at a judicial position! — Ed. Like it was there to begin with. . . .]

Predictions: The (federal) constitutional amendment project will fizzle. A more interesting question is whether Massachusetts voters will amend their state Constitution to overrule the decision. It’s fairly hard to amend the Massachusetts Constitution, but not that hard. Should they succed, it will be a major blow to gay marriage efforts, since a gay-rights opinion that can’t survive in Massachusetts isn’t likely to fly nationwide. I predict that the decision will stand, though it may well be close.

More general punditry — this helps Bush, and hurts Democrats. Democrats are divided on gay marriage (black voters are, I believe, among the most hostile to it, and so are older voters), but they have a powerful gay-rights constituency. I don’t think the effect will be big, though. To me this seems like the kind of issue that would be bigger in a non-Presidential election year. With a war on, and bigger issues on the table, I don’t think it’s going to drive the elections.

That’s my take, anyway.

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