Trampling Constitution to stamp out gay marriage

August 03, 2004|By Steve Chapman

CHICAGO - I don't know if gay marriage will have all the bad effects predicted by conservatives, but it's already having one they didn't foresee: driving them stark-raving mad. They've set out to prove they can devise one remedy after another that is not only unnecessary but worse than the problem it's supposed to fix.

Their discombobulation began when the Massachusetts Supreme Judicial Court struck down the state's ban on gay unions and ordered the state to issue marriage licenses to same-sex couples. Never mind that the ruling had no effect beyond the Bay State. From the reaction, you'd think same-sex marriage was going to be mandatory for all. The call went out that something, anything, had to be done.

First, critics of the decision offered a constitutional amendment banning same-sex unions anywhere in America. Despite being endorsed by President Bush, it blew up on the launch pad. Constitutional amendments need 67 votes to pass the Senate, and this one attracted only 48 supporters.

So conservatives promptly came up with another idea. If you can't amend the Constitution, you can make it irrelevant. They propose to do this by taking the whole issue away from federal judges. In July, the House of Representatives approved the Marriage Protection Act, which effectively bars any federal court, including the Supreme Court, from hearing challenges to laws against same-sex unions.

Why is it needed? "This legislation ensures the people and the states will have a say in marriage policy," declared House Judiciary Committee Chairman F. James Sensenbrenner Jr. It may come as news that conservatives want the states to have a say in marriage policy. The constitutional amendment, after all, would have done exactly the opposite - forbidding any state from legalizing gay marriage.

In fact, federal law already protects the right of the states to do whatever they darn well please. In 1996, Republicans were worried that Hawaii was going to allow same-sex marriage and, conceivably, force other states to accept gay unions transacted there. So, over the howls of gay rights groups, they pushed through the Defense of Marriage Act (DOMA), denying federal recognition of same-sex marriages and ensuring each state the power to do likewise.

Back then, DOMA was championed by conservatives as a way to protect traditional marriage as well as democracy. Senate Majority Leader Trent Lott described it as "a pre-emptive measure to make sure that a handful of judges in a single state cannot impose a radical social agenda upon the entire nation." But now, having failed to get their constitutional amendment nullifying DOMA, conservatives want to make sure supporters of same-sex marriage can't persuade the Supreme Court to issue a decision nullifying DOMA.

Barring judicial review of a category of laws is not exactly a conservative notion. Courts have taken responsibility for deciding the constitutionality of laws since the early years of the republic, a role set out for them in the Federalist Papers.

Stripping them of that power is a drastic step. Conservatives say we need to keep hyperactive judges from shoving gay marriage down our throats. But who says they're going to?

The Constitution has long been understood to protect state power over marriage - even in the dark days when Southern states refused to accept interracial marriages from elsewhere. DOMA reaffirms the point by stipulating that states are free to treat gay weddings as the equivalent of Monopoly money.

Of course, it's theoretically possible that the Rehnquist Supreme Court, dominated by Republican appointees, will suddenly discover a constitutional right to same-sex marriage. But worrying about that is like worrying that the Rev. Al Sharpton will take a vow of silence. The Marriage Protection Act amounts to a pre-emptive strike based on a preposterous fear.

It would do serious collateral damage, though. The bill would set a precedent that sooner or later will bite conservatives on the bottom. Liberals could bar courts from using the Second Amendment to strike down gun control measures, or from invoking the Fifth Amendment's protection of property rights to block environmental regulations.

Once we start down this road, says Cass Sunstein, a University of Chicago law professor, "there's no place to stop." He predicts court-stripping would become "an irresistible tool" whenever Congress gets the urge to pass a constitutionally dubious measure.

To react to one state's legalization of gay marriage by mutilating the Constitution or wrecking the separation of powers is the equivalent of elephants stampeding at the sight of a mouse. It's more sensible to just tolerate the little critter.

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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