Judicial Activism Will Renew Push for Marriage Protection Amendment

In 1993, the Hawaii Supreme Court ruled in Baehr v. Miike that the state would have to demonstrate a compelling interest in order to continue its ban on same-sex marriages and sent the issue back to trial court. In 1996, the trial court ruled that the state could not show such a compelling interest and effectively expanded legal marriage to same-sex couples. That same year and largely in response to the Hawaii judicial decision, Congress passed the Defense of Marriage Act (DOMA) with overwhelming bipartisan support and it was signed into law by Democratic President Bill Clinton. DOMA guaranteed that states would not have to recognize other states’ same-sex unions under the Constitution’s full faith and credit clause and defined marriage as a union between one man and one woman at the federal level. In 1998, voters in Hawaii amended their state constitution to once again prohibit same-sex marriage.

On November 18, 2003, the Massachusetts Supreme Judicial Court ruled in Goodridge v. Department of Public Health that the state’s prohibition of same-sex marriage violated the state constitution. The legislature subsequently declined to place a state constitutional amendment on the ballot that would have given voters the opportunity to decide whether or not to allow same-sex marriage in their state. Although the Federal Marriage Amendment (FMA) was originally introduced by former Colorado Congresswoman Marilyn Musgrave on May 21 of that year, prior to the Goodridge ruling, there can be no doubt that the legal battle in Massachusetts was a catalyst for the amendment. The FMA defined marriage as a union between one man and one woman and would have prohibited same-sex marriage throughout the United States.

Ultimately, Goodridge led to an election year battle over same-sex marriage in 2004. President George W. Bush supported the FMA while Massachusetts Sen. John Kerry, his Democratic opponent, opposed it. Although the amendment did not pass the House by the necessary 2/3 margin and never even overcame a filibuster in the Senate, the debate led to numerous state referenda prohibiting same-sex marriage and undoubtedly contributed to Kerry’s defeat. Renamed the Marriage Protection Amendment (MPA), the amendment has occasionally been reintroduced in Congress to no avail.

The battle over same-sex marriage essentially died after the 2004 election. In 2008, neither Obama nor McCain favored amending the Constitution to prohibit same-sex marriage and both stated that decisions on marriage should be left to the states. Although a few state courts and legislatures have granted some version of legal recognition to same-sex unions, anytime same-sex unions have been put directly to voters they have been rejected. The constant rejection of same-sex unions by voters indicates that opponents of same-sex marriage represent a political sleeping giant. That giant may have been awakened last week.

On July 8, Judge Joseph L. Tauro of the U.S. District Court in Boston ruled in Gill v. Office of Personnel Management that Section 3 of DOMA violates the Fifth Amendment’s due process clause, and in Massachusetts v. United States Department of Health and Human Services that the same section of DOMA violates the Tenth Amendment. Although Gill and Massachusetts stop short of ruling the full faith and credit clause exemption, which is found in Section 2, unconstitutional, the damage has been done. A federal court has now ruled that Congress cannot define marriage at the federal level as a union between one man and one woman without amending the Constitution. Anyone who thinks there won’t be a renewed push for the Marriage Protection Amendment is either delusional or in serious denial.

So-called “gay rights organizations,” which are really nothing more than gay front groups for the liberal agenda, are celebrating the Gill and Massachusetts decisions. As a gay conservative, I’m not celebrating. As a conservative, I can’t find anything to celebrate about a judicial activist “interpreting” the Fifth and Tenth Amendments in order to legislate from the bench. But, moreover, as a gay man I can’t find anything to celebrate about the political stupidity of the gay left and the renewed push for the MPA that is sure to follow. Baehr and DOMA, Goodridge and the FMA – if the definition of insanity is doing the same thing over and over again and expecting a different result, how nuts is the gay left?

If we ever want to see legal recognition of our relationships, we need to finally learn the lesson of Baehr, Goodridge, and now Gill and Massachusetts that the judicial redefinition of marriage through deliberate misinterpretation of the Constitution is not only wrong, but counterproductive. If we want same-sex unions, we’re going to have to convince our fellow Americans – the very voters who, given the opportunity, have rejected such unions – that we represent no threat to the institution of marriage or to morality in general. A strategy of judicial activism is doomed to failure. If the sleeping giant of opposition to same-sex marriage is poked too hard, pushed too far, we will wake up one day in the not too distant future to a ratified Marriage Protection Amendment.

Our ability to convince our fellow Americans that we are ordinary people just like them is compromised by a far from ordinary vocal minority. These are the far left gays and lesbians, usually radical socialists, who have entered into an unbending alliance with the Democratic Party. Their extremism makes all of us look extreme, and their radical leftism makes all of us look like radical leftists to voters who, at the end of the day, still find themselves on the center-right of the political spectrum. As long as far left gays and lesbians dominate the debate, all gays and lesbians will continue to be perceived as extremists and legal recognition of same-sex unions will make no movement through the democratic process.

It’s time for the gay and lesbian “silent majority” to come out of the closet. Many of us are moderates, independents, libertarians, even – gasp! – conservatives and Republicans. You won’t find too many of us at Queers for Choice meetings because we’re little league dads and hockey moms busy raising our kids in suburbia. You might see a few of us at anti-war rallies demonizing liberal democracies like America and Israel while defending anti-gay Islamic terrorists, but you’ll probably find many more of us serving in Iraq and Afghanistan. You may see a few gay activists at anti-globalization protests condemning the “evils” of free markets, but don’t forget about the gay and lesbian entrepreneurs who own some of the small businesses that fuel our economy and create jobs.

Following Gill and Massachusetts last week, this gay and lesbian silent majority can’t afford to be silent anymore. Those of us who have more in common with our next door neighbors than with Bill Ayers and Hamas know that a strategy of judicial redefinition of marriage will lead to a Marriage Protection Amendment. We must unite with our fellow Americans in vocally opposing such judicial activism. We can and we must demonstrate that we are ordinary citizens who love America as much as our neighbors do, and that far left gays and lesbians are just as fringe as the broader far left. Over time, we will build trust, and that trust will lead to legal recognition of our relationships through the democratic process. But we must understand that victory will come only through dialogue, debate, and the ballot box, and not through a dictatorship of unelected judges.

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