Gay Marriage Returns!

Like the monster in a bad horror movie that just won't go away, gay marriage has returned to the forefront of American politics, for a week at least. My opinion on gay marriage is essentially my opinion on all marriage; the government should not be involved in it, period. Essentially, I think that the government should get out of the business of marriage, leaving it to the churches to decide who they want to marry. This, of course, would mean an end to tax breaks based on marriage.

My solution to some of the other benefits of marriage, such as being able to visit relatives in hospitals and receiving social security benefits and the rest don't concern me all that much. I think everyone should be able to file civil union papers, gay or straight, to allow such things. What about polygamy? An issue for another day I guess. For reasons of simplicity, limiting benefits to one partner makes sense, and should be able to surpass a mere-rationality equal protection test.

That said, as a practical matter I come out on the liberal side of this thing, for a simple reason. I don't believe that discrimination should be written into the Constitution (again). A great deal of work and effort went into removing the vestiges of discrimination from the document. Writing it back in is nonsensical.

I have to say, however, that there is a form of rationality behind the movement for a Constitutional amendment banning gay marriage, due to the method through which gay marriage is coming about. I hate the term "activist judges," but when judges overturn marriage legislation on "equal protection" grounds, I get squemish. This is not because I believe gay marriage is wrong, or that the courts are wrong in allowing it. It is because of how society is going to react. Massachussetts courts allowed gay marriage a few years ago. Washington courts are largely expected to do so in the next few weeks.

And herein lies the problem. The Full Faith and Credit clause of the Constitution would require valid marriages in Washington to be recognized elsewhere. This is not the case with Massachussetts marriages, because of a specific Massachussetts provision that says no marriage that would not be valid in another state can transfer to that state. Washington has no such provision, and so Full Faith and Credit will be implicated.

One possible solution is the Defense of Marriage Act, signed into law by President Clinton. DOMA purpots to allow states not to acknowledge gay marriages performed in other states. This appears to be directly opposed to the Full Faith and Credit Clause, and in my (admittedly unresearched) opinion, DOMA would have to fall if it were challenged.

As a result, the state of Washington is in a position, potentially, to make an important decision for other states. The gay rights movement has decided to shortcut the process of changing hearts and minds by seeking change through the courts. Their legal arguments are usually solid, but I believe that, followed to its logical conclusion, this kind of approach will result in a backlash. THIS constitutional amendment attempt will fail, because there are not enough Senators or Congressmen who are willing to take pre-emptive action. In 5 years, that may be a different story, and the country may take a huge step backward.