Say Nothing About Marriage

I would hope that either or both or all candidates for president of the United States will have the integrity and the courage to openly announce that they will take no position whatsoever on the contentious issue of "gay marriage."

It has become a fad in American politics, the last few decades, to expect every president, and every candidate for president, to express an Official Opinion on every debatable issue on anybody's radar screen. Some voters rely on these opinions to decide who they want for president.

Many of these issues are really none of the president's business, none of the federal government's business. This is still a federal republic. Our commerce may be almost entirely interstate, the federal government may have grown to huge and intrusive proportions, some of that may be good and right and necessary. But, the federal government is still one of enumerated powers, and there are matters still reserved to the states, or to the people.

Marriage is definitely NOT under federal jurisdiction. It is for the states to define.

The question of whether to expand the traditional definition of marriage, issuing marriage licenses to couples of the same sex, is a passionately debated one at this time. There should be no hurry to close the debate, with a definite and binding final answer.

At this time, different states have taken a variety of different positions. Some have chosen to issue marriage licenses to same-sex couples, identical to those issued to opposite-sex couples. Some have chosen to write into their state constitutions that marriage means ONLY the union of one man and one woman. Some have chosen to experiment with "civil unions," a status available to same-sex couples (and in some states to unmarried opposite-sex couples), which is distinct from marriage.

This is healthy. This diversity of law reflects a great diversity of opinion among the people of the United States of America. It is only natural that some states will lean one way, other states will lean the opposite way. It is vital and healthy to leave the matter open for different states to adopt different answers, which are acceptable to people in those states.

True, for a Bible-believing born-again Christian living in California (and there are millions), it is painful to observe that one's own state legislature has approved of civil unions, and the state supreme court has ruled that equal protection of the laws requires that same-sex couples who choose to apply receive marriage licenses. Likewise, for an affectionate, monogamously-committed same-sex couple living in Ohio (there are at least tens of thousands), it is painful to know that the law denies one the marriage license that any opposite-sex couple can obtain, no matter how frivolous, violent or short-lived the marriage might be.

But to set a single national standard will doom one or the other to suffer such pain permanently, with no rays of hope from other states where the majority takes a different view.

Why not make room for different majorities in different states to try different resolutions, and then observe each other's results? If anything, a wise president should encourage the debate, prolong the debate, and refuse to put the weight of federal power behind any particular position that may arise.

Of course any candidate who rises above conventional politics to do this will face some tired and trite questions:

Isn't this just an expedient way to duck the question?

If it is expedient, it is expedient for good and proper reason. If taking one side or the other is going to cost a calculating politician votes, obviously there is profound division among the people. The federal government should refrain from favoring one position over the other, or demanding national uniformity. There is more pressing business that the federal government can and must resolve now, and that should be the focus of election campaigns. We can afford to take our time on the issue of "gay marriage."

Would you have said the same thing about the civil rights movement or abolition of slavery?

Another fad of the last few decades is that almost every conceivable cause has tried to wrap itself in the legacy of the civil rights movement. This is very unhealthy. Any cause, right or wrong, just or unjust, should rise or fall on its own merits, not by drawing analogies to other causes which have achieved national consensus. Every form of discrimination is different. Every kind of oppression has different causes and different solutions. Equal protection of the laws does not entitle 5-year-olds to vote. When we abolished separate restrooms labeled "white" and "colored," we did not abolish separate restrooms for men and women, although we DID abolish both "whites only" and "men only" membership in business clubs. To say that we will never again treat people like animals, does not necessarily mean that we must treat animals like people.

It is worth noting that the movement to abolish slavery began, by and large, in the mountains of eastern Tennessee, western North Carolina, and in the Piedmont and mountains of Virginia. Mississippi adopted a constitution in 1832 which prohibited the importation of slaves for sale into the state. When powerful and wealthy slave-owners secured control of the legislatures of many states, and imposed criminal penalties for even questioning the morality of slavery, that is what made it impossible to resolve the issue by any means but a bloody civil war.

By the time the Civil War was fought, and the 13th, 14th and 15th amendments adopted, the nation had had for score and seven years AS a nation, and slavery had been debated for at least 100 years back into colonial times. By the time Martin Luther King wrote Why We Can't Wait, civil rights laws had been on the books for 100 years, and the nation had been through at least four or five eras of race relations. The debate over the definition of marriage does not need to go on for 100 years, but the president of the United States doesn't have to draw it to a close this year, or even in the next four years. A legally sustainable answer requires a broad consensus; that can only be achieved by open discussion and debate, or by forceful conquest.

Won't a president's appointments to the federal courts, especially the Supreme Court, determine the outcome of this debate?

It shouldn't. People who have firm convictions on a given legal issue can play a valuable role in the advocacy bar. They are unfit to judge future cases. No president with integrity will appoint impassioned advocates of present controversies to the Supreme Court.

Brown v. Board of Education of Topeka Kansas was not decided by justices who were asked at their confirmation hearings whether Plessy v. Ferguson should be overturned. The idea wasn't even on anyone's radar screen when they were nominated. The decision was unanimous, although at least one justice was a former member of the Ku Klux Klan (and he was one of the liberals on the court by 1954). By the time Thurgood Marshall was nominated for the Supreme Court, the legal rulings for which he advocated had already been securely adopted, by judges who had not been advocates at all.

So, nobody who says they will NEVER even consider that equal protection of the laws entitles same-sex couples to a marriage license should be nominated to the Supreme Court. Nobody who says they will take the first opportunity to INSIST that equal protection of the laws entitles same-sex couples to a marriage license should be nominated either. We need justices who will listen carefully to the facts and the legal arguments actually presented to the court, and make a sober judgment according to the law.

If this is a moral issue, or a matter of rights guaranteed to every individual by the constitution, how can any president dare to take no position at all?

There are profound moral claims on both sides, and several moral positions held by citizens who are not vigorous advocates either for or against issuing marriage licenses to same-sex couples. Nobody with any sense could claim that "This nation cannot endure half allowing gay marriage and half insisting that marriage is only between a man and a woman." Nobody is going to go to war over this issue. Nor is anyone's life, liberty or property seriously infringed. If a gay couple with a marriage license lives next door to a family which sincerely believes homosexual conduct is a grievous sin, the parents can still teach their cherished beliefs to their own children. If a gay couple is denied a marriage license, their right to share a private household is firmly protected by law already. The president of the United States is not the ultimate judge of morality, and not always the best guide either. Only a free and open debate offers any possibility that we will all, or mostly, arrive at some acceptable consensus in due time. The president should take an open and honest hands-off position.