President Bush's treatment of gay marriage is being criticized widely across the blogosphere, by blogpundits of all political stripes (e.g., Dreher, Drum, Green, Sullivan). In contrast, I think Bush did something quite clever, which most of the pundits have missed. Here's the key excerpt from the SOTU:
Activist judges, however, have begun redefining marriage by court order, without regard for the will of the people and their elected representatives. On an issue of such great consequence, the people's voice must be heard. If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process. Our nation must defend the sanctity of marriage.The move Bush makes here is to begin shifting the terms of the debate from outcome to process. Yes, he's still focusing too much on whether the law should recognize gay marriage, but at least he has begun to shift attention to the real question, which is "who decides"? The people's elected representatives or the imperial judiciary?
I don't have particularly strong views one way or the other on the issue of gay marriage as a legal institution. As long as the government isn't telling the Catholic Church (or any other church) that it has to recognize gay marriages as a religious matter, my libertarian instincts incline me to take a laissez faire attitude towards marriage as a legal institution.
Whatever happens with the legal institution of marriage, however, ought to happen as a result of democratic processes rather than by judicial fiat. The founders of our republic set up a carefully nuanced set of checks and balances, but the last couple of generations of Americans have allowed nine unelected old men and women to seize control of a vast array of deeply contentionous social and cultural issues of national import knowing that they are immune from being held accountable for their decisions. Our judges now use the law to impose elite opinion about how society should be ordered regardless of the democratic will. We have become courtroom spectators rather than participants in the democratic process. It is as the famed First Things symposium put it, The End of Democracy.
I would like to see Bush turn the debate fully to the "who decides" question. Instead of talking about the sanctity of marriage (which heterosexuals like Britney Spears are doing a pretty good job of destroying without help), Bush should focus the debate on judicial activism. How to do this? Revise the FMA so as to leave the definition of marriage to the state legislatures, while not requiring other states (or the federal government) to accept another state's definition. Then let the chips fall where they may.
The idea is to allow representative democracy to work out the answer on a state by state basis without courts using either equal protection or the Full Faith and Credit clause to impose a national regime before the national population (not just metropolitan elites) have reached consensus. A very narrowly tailored FMA would not require one jurisdiction to honor the definition of marriage used by another state. If Massachusetts decides to validate gay marriages and a gay couple got married in Massachusetts and then move to Alabama, Alabama would not have to treat them as being married. Arguably, Alabama already would not have to do so, because the FF&C clause has a public policy exception. It is sharply contested, however, whether the public policy exception would be applied to allow states to decline to recognize gay marriages lawful under the law of the state where the marriage occured. This has become a particularly debatable proposition after the decision last term in Lawrence. Hence, the suggestion to offer a very narrowly tailored FMA to allow each jurisdiction to decide for itself what will constitute a legal marriage under its laws, without having to defer to the definition used by the locus of the marriage ceremony.
If courts had left abortion to the political process, I suspect we would have ended up about where we are now, but our politics would be a lot less venomous. If the courts don't learn from that lesson and cram down gay marriage before the country is ready, I suspect our politics will get a lot more venomous.
