From The New Republic, http://www.tnr.com/docprint.mhtml?i=20040315&s=editorial031504 - emphasis mine
President Bush's endorsement of a constitutional amendment to ban civil marriage for gay citizens is one of the more radical steps of a radical presidency. It represents a new level of conflict in the culture wars, placing the Constitution itself squarely in the middle of the fray. It also represents a conscious political strategy by the White House to manipulate fears of homosexuality in order to energize its own, somewhat demoralized, electoral base. For all these reasons, the amendment is not only misguided; it's a dangerously divisive, morally troubling, and constitutionally extreme proposal.
This country has long had a tradition when it comes to questions related to civil marriage: namely, that such matters are best left to the states. Controversies over the legal age limit for marriage, miscegenation statutes, divorce laws, and so on have been dealt with on a state-by-state basis throughout U.S. history. No state has ever been required to automatically recognize the civil marriages of another state (although many have chosen to do so). Where conflicts emerged between marriages legal in one state and illegal in another, courts have routinely deferred to the "public policy" objectives of the differing states in question. That's why, for example, interracial marriages were long legal in some parts of the United States while remaining illegal in others. Somehow, the country survived these discrepancies and turbulences without amending the Constitution itself.
Some argue that the November ruling of the Massachusetts Supreme Judicial Court mandated a national solution and so now requires a national response. But no sober review of the facts can make that so. The Massachusetts marriage statute itself renders null and void any civil marriages entered into in the Commonwealth with the intent of transporting them to another state where such marriages are illegal. Thirty-eight states have made their own refusal to recognize same-sex marriages explicit by passing their own "defense of marriage" laws, giving courts little leeway to favor same-sex marriages across state borders. If there should be any remaining doubt, the federal Defense of Marriage Act of 1996 serves as yet another barrier to a nationalization of Massachusetts's policy. The idea, then, that same-sex marriage in Massachusetts means same-sex marriage across the entire United States is preposterous.
Moreover, there's a very good reason for keeping civil marriage as an issue resolved by the states. In a culture as diverse as ours, on a matter as emotional and as profound as civil marriage, allowing for a diversity of legal options is sound public policy. The cultures in San Francisco and Boston are different from those in Colorado Springs and Baton Rouge. Trying to foist a single definition of civil marriage on such disparate localities--indeed, on all localities--is to remove important safety valves from cultural conflict. It's a recipe for national crisis, not national evolution. The genius of federalism is that one state can try out a reform in social policy and, in so doing, act as a test case for the country as a whole. We have long been warned of the allegedly dire consequences of allowing gay citizens to marry one another--from the collapse of heterosexual marriage to the rise of promiscuity, polygamy, and incest. We have long believed, for our part, that breaking down the barriers to gay marriage will, in fact, have an opposite effect: It will strengthen marriage, bring gay people fully into their own families and society, and promote responsibility, inclusion, and fairness. Of course, no one can know for sure. So why not try it in one state, or even a few, and see what happens?
We suspect that this is precisely what President Bush and other backers of the amendment fear. They have already been struck a p.r. blow by the moving sight of ordinary gay couples lining up in San Francisco for the radical and subversive act of committing to each other for life. If one state is allowed to have equal marriage rights, the family-affirming effects of this measure will be plain for all to see, and the anti-gay hysterics will lose whatever rhetorical leverage they now have. That is what the president is trying to prevent, which is why his amendment would not simply forbid civil marriages from being transported from one state to another but would prevent any state from recognizing them even within its own borders. That radical step, so alien to the conservative tradition of states' autonomy and constitutional prudence, must be prevented. We hope that Democrats and Republicans alike can unite to defeat this divisive, ugly, and unnecessary electoral gambit.
