Constitution Schmonsititution[Click to read]
Mr. Bush wants to amend the constitution to include these words; "marriage in the United States shall consist only of the union of a man and a woman." I am not sure how to convey in writing the sort of pause this should bring to you. He wants to amend the constitution of The United States of America.
Very, very, very pregnant pause here. A moment of terrified silence even.
What Mr. Bush proposes to do would constitutionally endorse an entire class of persons (heterosexuals). Put right on them that constitutional stamp of approval. Or, if you are cynical, it would constitutionally reject everyone else. Its your choice, since it makes no difference. It is the antithesis of what the Bill of Rights was intended to do regardless of what terms you couch it in. (I can not help the picture in my mind of Mr. Bush standing next to a giant machine churning out Star-Bellied Sneetches)
Now I am going to frame the issue, since I am in charge of this little bit of the world, by first telling you what the issue is not.
This is not a question of the rightness or wrongness of homosexuality.
This is not a question of the inherent danger to children everywhere if gays are allowed to marry.
This is not even a question of democracy and what the majority of people want.
The question is this:
Why in the world does this issue need a freaking constitutional amendment?
Amendment is a very big gun, folks! It is the nuclear weapon of U.S. law, it trumps everything, it is literally in charge. After all, when the Justices of the Supreme Court sit down to decide any constitutional issue they are constrained within the bounds of the constitution itself. No matter how persuaded they may be that certain people are inherently inferior (Oh, like, I don't know... TV tort lawyers) they can not just uphold a law making it perfectly legal to punch one on the first Monday of each month. Even if every single person in the country except for TV tort lawyers voted for it. The constitution would stop them, and us.
But what if we amend the constitution? Lets add this lovely bit of prose right in there so we can get what we want with having to worry about that old constitution standing in our way; "battery in the United States shall be the harmful or offensive touching of the person of another unless the other is a TV tort Lawyer."
Once we've put that brilliant bit of thinking into the constitution, what will our justices do? They'll uphold the law as being perfectly constitutional. They have no choice. Now suppose that they never really thought you should just be able to whack a tort lawyer. They may be all be closet tort lawyers at heart. Maybe they have tort lawyers in the family. Damn liberal stacked tort lawyer loving court! What can they do about this then?
The answer is nothing.
Out little amendment has made it facially constitutional to subject some people to a different set of rules than others. That simple. The justices don't get to grapple, they just have to comply. It is impossible for the constitution, itself, to ever be unconstitutional. And the only way to change it is with a new amendment. A counter amendment. If the amendment is a nuclear weapon, we are now at constitutional nuclear war.
Back to our question. Why the heck do we need to roll out the big guns? The majority of people in this country are opposed to gay marriage. Isn't that enough to stop it? Mr. Bush doesn't think so and he is probably right.
His fear is that every time this equal protection question comes up in state court the decisions are going to allow gays to marry. (I have to laugh at the irony here, a republican wanting to strong arm states into compliance with the federal scheme?) Then it will come up in appellate courts, applying state laws, and the decisions will stand. And this horrible blight of lawfulness will spread all across the country, unchecked by popular opinion, blanketed by the protection of the states constitutions.
In other words, Mr. Bush wants to haul out the big guns to kill this thing quick because it's the only way he can kill it. Every time this issue comes up, courts of reason are going to hold that to deny one person the rights and privileges afforded to another is a blatant denial of equal protection and patently unconstitutional.
The whole point of equal protection is an historical recognition that some times the majority is not right. Sometimes the minority, unpopular smart mouthed red-headed step child that it is, has the right idea. Have you noticed how up to now all the changes have extended constitutional protection, not limited it? (Oops, I forgot about prohibition. THAT was a good idea)
So if Mr. Bush has his way and rewrites the constitution to reflect the opinion of the MOB, I believe that we will all be diminished in a fundamental way. This amendment "fall out" is going to hit every one of us. Once the taboo is off the amendment process everyone with an agenda, a lobby, and some popular support will be seeking to do the same thing. How do you like this one?
"ARMS in the United States shall be defined as only those weapons which existed on or before the year 1791."