OK. I’m officially puzzled. Gil Smart, for whom I have a great deal of respect, seems to have misunderstood my proposed compromise on gay marriage in his recent post on Smart Remarks.
My ears were burning, and now I see why.
Joe Hainthaler has a piece over at his place suggesting a compromise on gay marriage - though, re-reading his post several times, I’m not sure exactly what his proposed compromise consists of. Letting the public vote on it? Isn’t that exactly what Brubaker wants to do?
There’s a reason the term “tyranny of the majority” was coined, after all. Can the majority always be counted upon, via the ballot, to embrace minority rights? Was it the ballot that won, say, African-Americans the Civil Rights Act of 1964, or women the right to vote?
It was not. It was, rather, a far-sighted vision by those (like LBJ, who in signing the 1964 Civil Rights legislation knew he was losing the South for a generation, as he did) who realized that the Constitution - be it the Constitution of the United States of the constitution of individual states - is a document that is designed to set forth and protect wide-ranging freedoms.
What I called for, and I thought I was clear on this, was to pass a constitutional amendment taking the regulation of marriage out of the courts, rather than defining it in the state Constitution, as Sen. Brubaker’s amendment would do. By extension that means sending the matter to the legislature.
And that is EXACTLY HOW we got the Civil Rights Act of 1964. And women got the vote through the 19th Amendment to the U.S. Constitution, which passed Congress (the national legislature) and the three-fourths of state legislatures necessary for ratification.
I would say that the Civil Rights Act probably should not have been necessary, since we’d already guaranteed racial equality in the post-Civil War amendments to the U.S. Constitution. That is not to say it wasn’t necessary. I’m glad the national legislature embraced minorities’ God-given rights. But they did, and to say, as Gil Smart does, that they didn’t and all the credit goes to LBJ and friends is exactly the problem that gives rise to my compromise: The left doesn’t trust the people enough to make its case for minority rights through the people’s representatives in legislatures and governor’s offices. And, as I have said before, resorting to the courts undermines respect for any new right. And our respect for the principles behind our rights are the strongest bulwark against their violation.
Addendum: Just to be super-clear, following is the difference between Brubaker’s proposed amendment and my proposal.
Brubaker wants to define marriage in the Pennsylvania Constitution.
I want a constitutional amendment that leaves defining marriage to the legislative process, retaining the rights of racial minorities that we, as a society, have already recognized.
Addendum II: I suppose I should respond to the rest of Mr. Smart’s recent post, the part he calls his “true compromise.”
What gays want is not so much title to the term, “marriage” - that’s all semantics. What they want are the legal rights that accompany that legal designation. They want the ability to inherit property from a long-time, loved partner. They want the ability to be covered under an employer’s health insurance. They want visitation rights in the hospital, even if the afflicted’s family doesn’t want them there.
They want the things you and I take for granted. And I tend to think if they had this, the term - the legal and even religious meaning of “marriage,” they’d be willing to forego that
Again, I would say that if you believe that homosexuals deserve the social benefits that go along with marriage, convince enough lawmakers that you are correct and get it written into law that way.
I think establishing this as a “right” is dangerous because how we treat married couples, singles and families in our tax codes and elsewhere are policy decisions, not matters of “rights.”
Just to clarify this point, let me present this hypothetical. A state offers subsidies or a tax write-off to parents for day care, provided both parents work. The mother in a two-parent family decides that’s unfair, giving the doctor-lawyer couple next door a tax break or subsidy and giving her family nothing for her decision to set aside her career and stay home to take care of her own children.
Now, I would say that as a policy matter, the stay-at-home mom is right. Why should the tax code or a state subsidy favor sending mom to work and not give the same benefits to the mom who stays home?
In the liberal world of court-created rights in place of social policy made by legislatures, her argument would be to the courts.
I say she should make her case to the legislature.
Social policy is a tricky area. Where children are concerned, we generally make it in the interest of the children. Since married couples often have or adopt children, I thnk we should be careful about tinkering with the institution in the name of court-mandated rights.
And we should be equally careful about changing who gets its benefits.
That, I believe, is the truly conservative case.
That’s why I oppose Brubaker’s amendment and Gil Smart’s call to declare equal rights for gay couples.
