Take the Pledge: No More Gay Marriage Debate without Constitution Debate

Gay marriage, pro or con? That’s one of the basic political debates these days. And yet, the debate as it occurs 99% percent of the time is not about the actual issue before us.

Over at NRO, a call by two former RNC operatives Liz Mair and Marco Nunez, for the Republican Party to abandon its opposition to gay marriage is generating a mountain of largely-hostile comments. The prompt is a particular resolution to be voted on by the RNC this weekend, the text of which can be found here .

While I tend to agree with the charge of “caving” being made by those NRO commenters, and think that party platform politics can have importance, my basic response to their post, and in some ways to most of their critics, is this:

Why are you arguing in this abstract way??? Do you not understand the real-life issue here?

For what I find most shocking about the Mair and Nunez post is that they make ZERO mention of the constitutional aspect of this issue.

Now, IMO, if one says one is “for gay-marriage” in general, but adds the recognition that our constitutions correctly interpreted demand that either gay marriage be voted in state-by-state, or be required nation-wide via amendment, that person should be welcome to be a part of the Republican coalition, and to serve at any level of leadership.

But to say that one is “for gay marriage” without that caveat, is essentially to say one will approve of the Supreme Court “finding” the right to gay marriage in the Constitution. But guess what? It isn’t there. So to be “for” gay marriage in this unqualified and simplistic way is to be for the most Constitution-trampling judicial activism imaginable.

They can report all they want on polls showing that more young Republicans than ever answer that they are “supporters” of gay marriage.  They (and those poll questions) are dodging the real issue.

Besides further endorsing a bad theory of Constitution-“interpreting,” a SC decision for gay marriage will have all sort of bad con-law side-effects down the line. Don’t get me started on what the most liberal-tarian lawyers out there will do, for the sake of heterosexual clients, once Anthony Kennedy’s constitutional right for any-and-every consensual sexual relationship to have equal freedom from legal disadvantaging is made the law of the land. And this is before we even get to the religious liberty issues.

But even if conservatives like me are wrong when we predict those bad jurisprudential side-effects, the bottom-line question remains the following: does the Constitution contain a right to gay marriage, or not? The likes of Nunez and Mair must answer that question.

And, the RNC resolution they oppose ought to speak most loudly upon that question—but instead, it plays up the old bromide about the “sanctity of marriage.”

Con-law is not that hard, folks. Not on this issue. Any dissident Republican leaders who suggest, “Well, lots of distinguished law school types say it is necessary to interpret the Constitution, and especially the liberty guarantee of the 14th, according to advanced theory, and so it is at least plausible to say the right to gay marriage really is in there,” are essentially asking their fellow Republicans to give up the game down the line in every area of constitutional controversy. All the “advanced theories” boil down to the theory of the Living Constitution. If you are willing to cave on defending the Constitution against such theory on this issue, supposedly to “resolve” an acrimonious national debate, you’ll cave on any such issue.

As for the mainstream Republican leaders who might as well be saying, “well, it’s too hard to explain this stuff to our base, so let’s instead play up the sanctity of marriage rhetoric again,” they’re nearly as bad.

I do not deny that it is good and necessary for everyone to go through the basic policy-debate pros and cons of whether gay marriage would be a good thing. Nor do I discourage braver souls from venturing into the deeper and more sensitive debate, the one about whether gays should receive, from their heterosexual fellow citizens, a final approval of the gay identity. IMO this is what the demand for gay marriage is at bottom seeking. That debate necessarily becomes one about what the true Biblical teaching about homosexuality, and sexuality generally, is, and whether a “public reason test” strongly counsels old-fashioned believers against actually voting in accordance with their understanding of their religion’s teachings.

Understandable, and entirely necessary debates. But to remain mainly focused upon them is bizarre, in that such debates are divorced from elementary political reality. That is, we often conduct them as if we presently have any sort of consensus that the gay marriage issue should be decided by a democratic vote.

We have the opposite of such a consensus. Precious few Democrats, and more shockingly, precious few socially libertarian Republicans have endorsed the Jonathan Rauch position that one can consistently be for gay marriage, but against the right to it being granted by the Courts.

Therefore, outside a handful of states where the passage of a law legalizing gay marriage remains plausible, the ONLY DEBATE that is about what actually will happen with the gay marriage issue, and about whether what will happen will do so rightfully, is the debate about whether the Supreme Court would correctly interpret the Constitution were they to say it requires all states to provide gay marriage.

So conservatives first of all, but also Republicans, libertarians, Democrats, and every American, please join me in taking the following Pledge:

“I do solemnly swear, that unless and until my state debates a law concerning gay marriage, I will never again enter into any debate about gay marriage without first and foremost speaking to the issue of whether it is required by the Constitution. I make this pledge regardless of my personal support or not for gay marriage.”

Who’s with me?