Fisking William Kristol on Gay Marriage

The more I read from conservatives and their arguments against gay marriage, the more I'm convinced that there simply isn't any there there. The latest is from William Kristol, who, along with Joseph Bottum, writes this article in the upcoming issue of the Weekly Standard. The article is almost purely rhetorical, with virtually nothing of substance offered in terms of legal arguments. It begins:

In an act of astonishing self-righteousness and self-congratulation, the Massachusetts Supreme Judicial Court has forced the question of marriage upon the entire United States.

Okay....were they wrong? What exactly was there in their ruling that was "self-righteous" or "self-congratulatory"? They don't say. In fact, they don't mention the ruling itself at all. They correctly note that if Massachusetts recognizes gay marriages, the rest of the nation will, under the constitution as currently configured, be forced to recognize them as legal and binding, and they correctly note that this can only be stopped with federal action. Then they say:

"If judges insist on forcing their arbitrary will upon the people," President Bush declared in his State of the Union address, "the only alternative left to the people would be the constitutional process." Judges in Massachusetts have now insisted, and the only serious alternative is an amendment to the United States Constitution defining marriage as the legally recognized relation of a man and a woman and withdrawing from courts the power to expand that definition to other human relations.

But of course, withdrawing that power from courts requires that you also withdraw that power from state legislatures and constitutions. Remember, the Massachusetts Supreme Court's decision was based exclusively upon their state constitution. And this is an issue that has always been a state matter, as the founding fathers clearly intended. So what this amounts to is overthrowing federalism to assert federal authority in an area that has always been a state prerogative (something conservatives are allegedly against) in clear contradiction to what any "strict constructionist" can tell you was the "original intent" of the founders (something conservatives adamantly claim to be for).

They then quote the Federal Marriage Amendment itself, and repeat the canard that it doesn't ban civil unions and applies only to courts:

Meanwhile, some supporters of homosexual marriage have argued that the amendment's second sentence bans civil unions and prohibits state legislatures from granting privileges to any human relation other than marriage. This is manifestly wrong: Every sponsor of the bill is on record as denying it--and conservative critics are vociferating against the amendment precisely because it doesn't outlaw civil unions. The second sentence is directed at courts, stripping from them the power to compel homosexual marriage by appeal to other constitutional provisions. Insofar as the amendment affects legislatures, it merely requires them to specify the benefits they wish to give to relationships outside marriage--which is what civil-union legislation ought to do in the first place.

But this isn't what the amendment says. The second sentence is not aimed exclusively at court rulings. It says,

"Neither this Constitution or the constitution of any State, nor State or Federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

That not only covers judicial rulings, it covers state constitutions and state and federal laws as well. At the very least, it renders any civil union laws that might be passed by the states unenforcable. If a state passed a law that conferred the legal incidents of marriage (tax benefits, probate presumptions, insurance coverage, etc) upon "unmarried couples" (the first sentence defined marriage as a man and a woman only), this amendment declares that those laws cannot be "construed" as doing what they would be intended to do. Two of the men who wrote the amendment have admitted as much, as I noted previously. Think about this...if the law doesn't stop civil unions, then they will inevitably have the same exact thing happen that they are now declaring intolerable, only under a different name. Vermont's Supreme Court has already declared that civil unions are required under their state constitution, and the federal constitution requires that those civil contracts be recognized and enforced by every other state. Do you really think that they are going to all this trouble just to insure that they get the same reality, but under a different name?A marriage by any other name would still smell as bad to the religious right. They end the article as they began:

This issue must come before the people themselves, and when courts cast their political preferences as constitutional law, only a constitutional amendment can answer them.

Notice again - nothing but unsubstantiated rhetoric. First they characterize the court as "self-righteous" and "self-congratulatory" without pointing to anything that would deserve those verbal sneers, then they make the wholly unsupported assertion that the court merely "cast their political preferences as constitutional law". Well that might be true, I suppose, but it's hardly an axiomatic assumption. Was their ruling legally incorrect? They don't say. Hell, they don't even attempt to give a legal critique of. It seems to be enough that they disagree with the outcome, therefore it must be legally invalid. Or "judicial activism". Or "judicial tyranny". Or insert your own bit of inflated and inconsistently applied rhetoric. But of course, if they were honest and were to apply their rhetoric impartially to similar circumstances, they would find that their arguments apply just as perfectly to the ruling striking down interracial marriages as well.