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October 07, 2004

If You're Against Gay Marriage, What Other Option Is There Apart From an Amendment?

Kerry's position -- that he is against gay marriage, but we can't lift a finger to actually make that the law -- is incoherent, as usual.

If you're against gay marriage, there is no other way to maintain one-man-one-woman marriage. Because state courts are unrelentingly hostile to laws prohibiting gay marriage, and even state constitutional amendments prohibiting them.

Andrew Sullivan is disingenuous when he claims, as most liberals do, to be against an amendment but in favor of "leaving the question up to the people." The people express their preference on this issue time and time again, but the people who actually make the decisions -- judges -- ignore them every time.

They will continue claiming the federal constitution prohibits one-man-one-woman laws and state constitutional amendments until the federal constitution specifically and expressly states that nothing within it demands gay marriage or gay civil unions.

And even then-- there will be liberal jurists willing to argue that the Constitution itself has become unconstitutional, and parts of it need to be ignored.

Sound crazy? It's not. That's exactly what liberal judges did in Nevada, when they decided that raising taxes was so imperative -- sorequired by the emanations and penumbras of the Nevada constitution -- that an explicit constitutional amendment requiring a two-thirds legislative vote to raise taxes could be disregarded as contrary to the constitution.

When even the actual constitution can be disregarded by partisan judges as "unconstitutional," what precisely is left of the theory of constitutional democracy at all?

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posted by Ace at 10:36 PM

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