State of Gay Unions

Perhaps the most carefully worded section of President Bush's State of the Union speech this year was his not-so-artful dodge on the subject of gay marriage. "Activist judges . . . have begun redefining marriage by court order, without regard for the will of the people and their elected representatives," he lamented, thus seeming to set up a presidential endorsement of the noxious proposal to amend the federal Constitution to ban same-sex unions. But Mr. Bush then went on to support the amendment only in the conditional tense: "If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process" (emphasis added). Mr. Bush then muddied the waters further by adding his usual plea for tolerance of gays, insisting that "each individual has dignity and value in God's sight." The idea, in an election year, is not subtle. Mr. Bush wants to keep the Republican base at bay with verbal Pablum about the "sanctity of marriage" and a promise to support an amendment if this gay-marriage thing gets out of hand. But at the same time, he wants to avoid energizing Democrats and alienating centrists by actually calling for one now.

We suppose we should be grateful that the president didn't go further and actually call on Congress to send a constitutional amendment to the states for ratification. We're not. Even in an election year, it shouldn't be asking too much to expect the president to firmly reject a step as radical as rewriting the Constitution to stop states from adopting laws that recognize gay relationships.

Mr. Bush's pandering is particularly upsetting because the reality in the states is not as he portrays it: a picture of liberal judges itching to overturn centuries of settled understanding of the meaning of marriage. So far, anyway, in exactly one state - Massachusetts - have judges ruled that gays and lesbians have a right to marry under state law. This was a provocative step that invites backlash. But it is also the exception, not the rule. In the four other states that have enacted laws recognizing gay relationships, most recently New Jersey, the recognition has come from state legislatures. And while these laws have conferred some or all of the benefits of marriage on same-sex unions, they have stopped short of actually extending the institution of marriage itself to gays. New Jersey's law was passed with surprisingly little controversy and national attention. Meanwhile, in Ohio, the legislature has moved in the other direction - rejecting gay marriage and denying domestic partnership rights to state employees. This retrograde proposal will make lousy, mean-spirited law, and we would hope that over time more states would take New Jersey's direction than Ohio's. But the immediate point is that the debate over gay marriage at the state level is far more textured, interesting and democratic - that is, reflective of local sensibilities - than Mr. Bush's caricature pretends.

Even in Massachusetts, the public is hardly powerless, since it ultimately has the power to amend the state constitution and overturn the high court's decision. Realistically, what Mr. Bush calls the "sanctity of marriage" - that is, heterosexual marriage's monopoly on state recognition - is only threatened to the extent that democratic polities in each state consent to expand their vision of it. Vice President Cheney put it succinctly during the 2000 campaign when he expressed acceptance of the fact that states would "come to different conclusions" on this subject and said he didn't "think there should necessarily be a federal policy in this area." That was right during the last election year; it is no less so this time around.

'Freedom to Marry Rings' image upper right © H. Mitchell.