Stand and Fight: Don't take gay marriage lying down

National Review, July 28, 2003 by Gerard V. Bradley

It's time for conservatives to take their cue from the New Jersey Nets, or maybe from those hard-luck kids, the Boston Red Sox. Only a few weeks ago, the victors in Lawrence v. Texas -- the Supreme Court case that struck down a Texas law against sodomy -- popped open the champagne and broke out the brie. The "Gay Pride" marchers were prouder than ever. "Gay families" are this season's media darlings. Moral traditionalists are shocked (though not awed). Most sit on the sidelines, dispirited, towels draped over their heads, trying to ignore the on-field celebration. The White House is quiet. Other Republican leaders are "unavailable for comment."

Enough already.

As the Nets and the Red Sox will tell you: Today is the start of next season. Time to bury disappointment and anger. Time to get going again. And we can thank some members of the Court for telling us that next season may be the last, at least for marriage. It's time to fire every single shot in our guns: Three justices, including the chief justice of the United States, say that the constitutional struts of marriage are gone. All it will take, evidently, is one more plaintiff, one more lawsuit. Could happen next term; more likely it is a couple of years off. What do we do? Is there time enough to do anything? Let us take stock. Conservatives can no longer take comfort in DOMAs (defense-of-marriage acts), state laws affirming that marriage is only for a man and a woman. For there is nothing in Lawrence -- in its turgid language or in its (putative) reasoning about dignity, liberty, and autonomy -- that can be held at bay by statutes or state constitutions. The Court, say the dissenters, is ready to declare a constitutional right to same-sex marriage. And that will be the nation's law -- "anything in the Constitution or laws of any state to the contrary notwithstanding" (the words of the supremacy clause in Article VI).

Lawrence was decided 6-3. Conservatives cannot divert the Court by stacking it. There just isn't time. The clock is running out for another reason, too: Same-sex marriage is rapidly being normalized, culturally and legally. Many same-sex couples already consider themselves married, and expect to be treated as such. In many jurisdictions they are -- more or less, depending on how many concessions the law has made to them on adoption, survivors' benefits, and the like. Canada says that they are married and Vermont that they are as good as married; Massachusetts is set to go the Canadian route.

For the time being, most Americans are convinced that Ralph cannot really marry Andrew, and that the law should not let them. This conviction is entirely consistent with the view (held by most Americans) that consenting adults should be left alone in their bedrooms. But Justice Scalia is surely right that "many Americans do not want [openly gay] persons . . . as partners in their business, as scoutmasters for their children . . . or as boarders in their home." Or as the newlyweds next door.

The premise of the majority opinion in Lawrence, however, is that it is unfair to prevent homosexuals from benefiting from any of life's valuable opportunities and pursuits -- family relations, employment, education, and, yes, even marriage. Homosexuals' free enjoyment of these goods is impeded by laws such as Texas had. This "discrimination both in the public and in the private spheres" (the majority's words) is "invited" by criminalizing sodomy.

The logic of the majority goes like this: Said "discrimination" is unconstitutional (or, some kind of wrong the Court is authorized to eliminate); the Texas law contributes to this discrimination; therefore, the Texas law is unconstitutional. The Court overturned Bowers v. Hardwick because, it seems, doing so was thought to be instrumental to the full and equal participation of homosexuals in all walks of American life, including the family.

What then is to be done? Conservatives must hold the defensive lines -- in state courts, in legislatures, in corporate America -- as best they can. These efforts will come to naught, however, if the Court stays its course. Of the majority's halfhearted denial that their decision in Lawrence commits them to upholding same-sex marriage, Justice Scalia warns: "Do not believe it." The only way to rein in this runaway Court is to change the supreme positive law: the Constitution. The Federal Marriage Amendment (FMA) would impose upon willful justices -- and every other public actor in the land -- a definition of marriage as the union of one man and one woman. The amendment would leave legislatures free to extend some benefits to non- marital households. But courts could not.

In the looming fight over the FMA, conservatives should emphasize that marriage is a crucial common good and not a raw majoritarian preference that is binding upon the unwilling by dint of superior will. The Lawrence dissents do not help here. Neither Justice Scalia nor Justice Thomas overcame the winner-take-all understanding of marriage and the polity wherein majorities are entitled to impose their personal preferences in the matter.