Nothing better to do?

June 06, 2006

Baltimore Circuit Judge M. Brooke Murdock should be feeling very powerful this week.

President Bush cited her ruling overturning a state ban on same-sex marriage and several rulings like it in other states as justification for hauling the issue to the top of the national agenda.

A mountain of work awaits on spending issues, including an emergency war appropriation from last year; Congress is nowhere near finished wrestling with such thorny problems as energy and health care; the constitutional conflict between national security and privacy remains unresolved.

Yet Mr. Bush and the Senate are now focusing their efforts on arguing the case for a constitutional amendment to define marriage as the union of a man and a woman. The House is expected to take up the issue soon as well.

"Activist courts have left our nation with no other choice," the president argued in his Saturday radio address, and underscored the message yesterday.

More precisely, Mr. Bush's dismally low approval ratings, thanks largely to his administration's disastrous conduct of the war in Iraq, have left him no other choice but to try to recover some ground at least with his conservative base by spotlighting one of its top priorities.

The only redeeming feature of this tactic is that a constitutional ban on same-sex marriage has no chance of speedy approval. Not even the Republican-led House has been able to muster the two-thirds majority necessary for a constitutional amendment; prospects in the Senate are much worse. Ratification by three-fourths of the states is also required.

Mr. Bush's weakened, apparently desperate condition fails to excuse his contention that the Constitution should be amended for the first time to limit rather than expand rights because Judge Murdock and her colleagues have threatened the institution of marriage and its fundamental role in society. In fact, opening marriage to all committed couples celebrates the institution and strengthens it.

Particularly hollow is the president's claim that creating a constitutional definition of marriage through Congress and state legislatures is "the most democratic solution" because courts would be removed from the equation. Courts are less subject to popular whim, but that's their purpose. Discrimination shouldn't be determined by a show of hands.

Enough time has been wasted on this topic. Congress should get back to some real work, such as enforcing ethics rules, and leave it up to Judge Murdock and her colleagues in state courts around the nation to work through an inevitable cultural change.

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