December 04, 2003, 8:49 a.m.
Conservative Confusions
Working on the next step.

EDITOR'S NOTE: This editorial appears in the December 22, 2003, issue of National Review. You can subscribe to NR here and to the digital version of the magazine only here.

In the weeks since the Massachusetts supreme court decided to impose gay marriage on the state, social conservatives have been losing the political debate over the issue. Already the language is changing. Democratic presidential candidates have even started referring to "non-same-sex marriage," and columnists to "op-sex marriage" — by which they mean what we all used to describe, before November, simply as "marriage."

Republicans have not decided how to respond to the court. Constitutional amendments to prohibit gay marriage have been introduced in both the House and the Senate. But proponents of the amendment have not decided how broadly it should be drawn. The White House has not said whether it would support an amendment. Some Republican leaders remain confused about the legal landscape. Speaker Denny Hastert, for example, has suggested that action can wait until a court strikes down the Defense of Marriage Act. He might be waiting forever: The courts could impose gay marriage on all 50 states without touching that act.

Several prominent conservative commentators have declared their opposition to a constitutional amendment. Their arguments deserve to be taken seriously. But they are not, in our view, persuasive.

We assume that David Brooks, now a columnist for the New York Times, opposes the amendment for the most straightforward of reasons: He supports gay marriage. Conservatives, he argues, should not just "allow" gay marriage but "insist" on it. Social pressures should be brought to bear on homosexuals so that they will refrain from promiscuity and settle down to married life. If that is the conservative case for gay marriage, what would the utopian one be? Brooks writes that many conservatives "have latched on to biological determinism (men are savages who need women to tame them) as a convenient way to oppose gay marriage." He continues, "But in fact we are not animals whose lives are bounded by our flesh and by our gender. We're moral creatures with souls, endowed with the ability to make covenants, such as the one Ruth made with Naomi: 'Where you go I will go, and where you stay I will stay. . . .'"

One possible confusion should be cleared up at the outset: The Bible does not imply that Ruth and Naomi were anything but daughter-in-law and mother-in-law, as unwary readers of Brooks's column may have inferred. Turning to Brooks's argument: It is not true that conservatives came up with the idea that men and women are different and complementary in order to justify opposition to gay marriage. It is a longstanding and sincere belief. It is also one that happens to be true. People have souls, but our lives are also bounded by our flesh and by our gender. Marriage is not only a union of souls; it is two persons becoming "one flesh" (and, in the procreative act, not merely metaphorically). If biology is so easily transcended, by the way, shouldn't homosexuals just turn heterosexual?

Jonah Goldberg and David Horowitz suggest that it would be wrong to enact a constitutional amendment that a large section of the population bitterly hates. Perhaps it would be wrong. It would also be impossible. It is very hard to amend the Constitution (at least if you're not the Supreme Court). An amendment cannot pass without first achieving a social consensus that it is necessary. The process of enacting the amendment is the process of forming that consensus. The fact that the consensus does not currently exist is not an argument against trying to create it.

George Will offers two reasons for opposing the amendment. The first is that it would prevent us from getting "evidence" about whether gay marriage would strengthen or weaken marriage. This is a curious objection for Will to make, because in the very same column he explains quite well that the Massachusetts court's view of marriage — the view that marriage is (only) a union of souls that bear reciprocal affections — makes it impossible in principle to object to polygamy. We need no social-science "evidence" to see that. We already have evidence from history about what polygamous societies look like, and about what sexual mores and family structures are most suitable to republican society.

What more "evidence" do we need? Do we need to find out whether gay marriages would be more likely to end in divorce than conventional marriages? Whether the children of gay couples would be more likely to have health problems than other children? Whether they would get sent to the principal's office more often? Only an intellectual would believe that the desirability of gay marriage turns on such questions. The problem may be that Will begins by stating that the debate about gay marriage concerns whether same-sex couples should be "excluded" from marriage. But if marriage requires sexual complementarity, then such couples cannot be "included." Gay marriage is a redefinition of marriage, not just an expansion of it.

Will's second argument is that "[c]onstitutionalizing social policy is generally a misuse of fundamental law." The key word here is "generally." The Constitution should not decide substantive questions but rather allocate the responsibility for deciding them. In the absence of an amendment, however, the courts are very likely to insert a liberal resolution of the issue into the Constitution. Conservatives have for the most part avoided using the courts to advance their preferred social policies. Liberals have no such compunctions. Now we are told that conservatives should also refrain from asking the people to use the amendment process to pre-empt the courts from imposing liberal policies. Maybe conservatives should just quit American politics altogether.

Many conservatives have been tempted to do exactly that over the years. Political activism by evangelical Christians was, for decades, practically non-existent. If social conservatives are told that the issues that most concern them, notably abortion and gay marriage, are going to be settled by the courts; that they have no political recourse; and that the Republican party is not going to stir itself to do anything about the situation — well, then, it will be awfully hard to explain to them why they should show up at the voting booth, let alone lick envelopes and knock on doors through the fall, to help the party. As Republican politicians read the conservative columnists and try to figure out what to do about marriage, they have to think about considerations far weightier than mere electoral advantage. But the political stakes are not trivial. If the conservative coalition does not take effective action to fight judicial liberalism, the conservative coalition will not survive.

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