The wrong way to achieve gay marriage

March 09, 2004|By Steve Chapman

CHICAGO - Gay-rights advocates have been working for years to change the laws against same-sex marriage, and in a couple of places, they've succeeded.

Vermont has legalized same-sex civil unions, and Massachusetts will start granting marriage licenses to gay couples by May 17. But in some places, officials dissatisfied with prevailing policy have adopted the approach enunciated by 19th-century railroad magnate Cornelius Vanderbilt: "What do I care about the law? Hain't I got the power?"

Across the country, local officials have taken it upon themselves to correct the errors of voters and legislators by letting homosexual couples join in matrimony. San Francisco Mayor Gavin Newsom started the trend a few weeks ago when he decided to issue marriage licenses to same-sex partners, even though state law doesn't allow it - and even though Californians voted in 2000 to reaffirm that policy.

Soon, the mayor of New Paltz, N.Y., was being hailed as a civil rights hero for following suit. Portland, Ore., and Sandoval County, N.M., have also sanctioned homosexual unions.

Same-sex marriage is a good idea that is long overdue, so it's understandable that many gays are impatient. But when impatience breeds contempt for the tedious processes of constitutional government, it's a danger to democracy and the rule of law - and probably to the campaign for gay marriage. Government officials who decide to implement what they think the law should be may have noble motives, but they are no heroes.

Gay-rights supporters understand the crucial principle when the government official is, say, Alabama Chief Justice Roy Moore - who installed a replica of the Ten Commandments in the state courthouse in disregard of the U.S. Constitution. But passion for a cause can warp judgment.

That's obviously the case with Mayor Newsom. He thinks he is entitled to allow gay marriages because the law, in his view, violates the state constitution's prohibition of discrimination. But it's not his place to make that judgment. On the contrary, he has a duty to follow the laws whether he likes them or not.

Cooler-headed advocates of gay rights understand that responsibility. New York Attorney General Eliot Spitzer, who won applause from gays when he said the state would honor same-sex marriages transacted elsewhere, also urged local officials not to issue licenses to gay couples. California Attorney General Bill Lockyer, a Democrat who has enjoyed support from gay-rights activists in the past, went to court to stop the issuance of marriage licenses to same-sex couples.

He argued that besides discarding state law, Mayor Newsom has ignored the state constitution. It says no city, county or other administrative agency may "refuse to enforce a statute on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional" - which hasn't happened in California.

Mr. Lockyer's brief is forced to belabor the obvious: "The genius of our legal system is in the orderly way our laws can be changed, by the legislature or by a vote of the people through the initiative process, to reflect current wisdom or societal values. ... Our system of government would deteriorate into chaos if people could simply defy those particular laws with which they disagree."

Those on the other side liken the movement to illegal protests by civil rights activists during the 1960s. But the analogy fails because blacks in the South were denied legal ways of pursuing their goals, such as voting and running for office. Gays, by contrast, have considerable political power, and they are using it.

Mr. Newsom says his step was needed to "put a human face and a real story behind the theory of discrimination." Jon Davidson, a lawyer for Lambda Legal, which advocates for gay causes, agrees: "I think the parade of couples on TV and in the newspapers and magazines is what is going to change the public attitude about marriage of same-sex couples."

Maybe so. But there was no need to break the law to bring that picture before the public. It will be emerging in Massachusetts in just a couple of months. It has already been on view in Vermont, whose civil unions are marriage in all but name.

The key difference is that those weddings don't violate the law, they conform to it. So they are less likely to spur support for a constitutional ban on gay marriage among citizens appalled by the prospect of legal anarchy.

Achieving gay marriage through the cumbersome processes of our system is slow and hard. But attacking those processes is bad for gays and everyone else.

Steve Chapman is a columnist for the Chicago Tribune, a Tribune Publishing newspaper. His column appears Tuesdays and Fridays in The Sun.

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