On Tuesday night, President Bush moved perceptibly closer to supporting a federal marriage amendment. But he stopped short of endorsing the idea, and gave no clue about which version–if any–he would ultimately get behind.
In his State of the Union address, Bush said, “Activist judges…have begun redefining marriage by court order, without regard for the will of the people and their elected representatives. On an issue of such great consequence, the people’s voice must be heard. If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process.”
Now, if these words had passed the lips of our last president, one would scarcely be able to grasp their meaning. Bush makes no mention of an amendment at all. “Constitutional process” is a wide-open term: Anything not illegal (like a riot) could be called a “constitutional process.” Besides, are all judicial decisions “redefining marriage” necessarily “arbitrary”? How many “arbitrary” decisions does it take to make a “jud[icial] insist[ence] on forcing their will” down our throats? Any law student can list the people’s options to overturn a bad court ruling. Listening to the State of the Union Address, one is left to wonder what the president actually means to do.
George Bush is no verbal hair splitter, however: He said what he meant, and he meant what he said. He wanted to indicate his growing acceptance of the need to amend the Constitution to save marriage, and so he did. The president also meant, just as surely, to indicate that he is waiting to see how badly the courts behave, how much the people push back, and just what the political classes agree to present as the “people’s alternative” before committing himself. And so he did: “Getting there, but not yet” was the message. The president is leading from behind on this one, for now, and that may be good enough, for now.
President Bush took a stand–the right one–on one matter hotly debated within the pro-marriage camp. He referred to the 1996 Defense of Marriage Act, and said correctly that it settled the federal definition of marriage as the union of man and woman. No matter what happens in state lawsuits about marriage, DOMA means that, for example, no two men (or two women) can claim “married, filing jointly” on their 1040. Bush then said that DOMA “declares that one state may not redefine marriage for other states.” Here he referred to the interstate portability of, say, Massachusetts same-sex “marriage” under the Full Faith and Credit Clause of the Constitution. Then the president talked about “activist judges,” and how to stop them.
What does all this portend? The president evidently takes it for granted that federal law already blocks courts from forcing Indiana to recognize Massachusetts same-sex “marriages.” The president is thinking of a different problem, then, when talks about what the people might have to do soon. That problem can only be judicial redefinition of marriage, even when the effects are confined within one state’s borders.
President Bush is (almost) committed to amending the Constitution to make sure that marriage is preserved, state by state, everywhere across the nation. He rejects the “federalism” definition of the problem, a definition held by many conservatives: preserve each state’s power to say what marriage is, whatever it says marriage is. If California or Hawaii wants two men to marry, so be it. Just make sure that Utah gets to be old-fashioned, if that is what people in Utah want to be.
Logic dictates the implications of the president’s argument, but logic cannot settle the apparent conflict between the two themes he is determined to pursue: Is he an incorrigible populist, or a relentless moral traditionalist? Last night he was both. Bush spoke eloquently about marriage as the union of man and woman, about how America values marriage, and must defend it. But he took dead aim at the courts. The president championed the people, their “voice,” their “will,” and their “representatives.”
While Bush promotes his populist stance, behind the scenes, Republican operatives from the top on down have been skirmishing with pro-family groups over what a marriage amendment should say. There are basically two camps; Tuesday’s speech put a foot in each.
The necessary point of reference is the Federal Marriage Amendment, which has two sentences. One camp supports it, whole and entire (for the sake of full disclosure: I am in this camp), whereas the other side supports only the first sentence. The first clause, which would attract significant Democratic support, amounts to the president’s implication: “Marriage in the United States,” the FMA begins, “shall consist only of the union of a man and a woman.” No political authority in this country–state or federal, judicial, legislative, or executive–could label or call any other relationship a “marriage”.
This sentence is no more about courts than it is about the people. It is traditionalist, as far as it goes. But the common understanding is that it goes nowhere near “civil unions.” Either the Vermont legislature, or the state’s courts, or both together could treat homosexuals as married in all but name, as could any other state.
The second sentence is populist, and it is about civil unions. It would prevent courts–but not the people’s representatives–from extending the legal benefits of marriage to unmarried couples or groups. And, because of the first sentence, no two men or two women could be ever be other than “unmarried.” The intramural debate up until about a year ago was whether this was strong enough. Many conservatives complained that an amendment should limit, if not eliminate, any extension of marriage’s incidents to unmarried couples. Neither a legislature nor a court–nor, for that matter, a state constitutional referendum–should be allowed to dilute marriage’s unique place in our society. These opponents would have added a third sentence, to make the wider prohibition clear.
The third-sentence crowd has melted away. Now the debate is over one sentence or two. It’s a measure of the rapidly disintegrating pro-marriage position that the one-sentence gang is in the ascendant. Republican senators say that nothing more is politically possible; many in the trenches have taken the claim as proof. But the claim is not proved, and likely is wrong. Those who think so (full disclosure again: I am one) hoped that the president would signal his disapproval of judicially imposed civil unions in the State of the Union, if not his approval of the FMA by name. Bush disappointed: He blasted the courts, but said (and implied) nothing about civil unions, which are “marriages” in all but name.
–Gerard V. Bradley is a professor at Notre Dame’s school of law.