Astrology

Okay. The time is now. I have been asked in class, I have been asked in the hallways (of life), I have been asked repeatedly: do I think the constitutional amendment defining marriage as between a man and a woman will pass? I have avoided giving my opinion – possibly to make it seem like I have an inside track, or at the very least infinite wisdom on the matter. I have neither, but I will give my answer nonetheless (prompted in part by Ann’s blog, which gives the completely opposite answer): yes, if the amendment were to require a vote today, I think it would pass.
I don’t want to get into a detailed and terribly serious analysis as to why. Let me just keep it short and simple:

1. Ann (who speaks with a great deal of credibility here because she is, after all, a Constitutional scholar, and so I realize I am tip-toeing over terrain that is near and dear to her heart, whereas the Constitution is virtually silent on family matters, and the number of important Supreme Court cases addressing the family can easily be counted on the fingers of both hands, and that is only a slight, journalistic exaggeration) concludes that Americans treat the Constitution as an instrument that confers, and rarely (if ever) removes rights.

Answer: Maybe. But there are no words in the Constitution articulating a right to marriage (let alone gay marriage) and so we can’t really say that the amendment is “removing” a right. Only in 1967 did the Supreme Court even attempt to link marriage to a fundamental rights discourse. And, in subsequent decisions, it became clear that even though marriage is considered a fundamental right, the state may regulate it if it can demonstrate a compelling state interest. No one wanted to permit under-age kids, or fathers and daughters to marry with the state’s blessing. So, from day one, limits on who can marry have been acceptable. This train of thought is obviously not what the MA court chose to develop (in a split decision), but we are talking about the national read on the Constitution.

2. Many (including Ann) say that Americans are not that mean-spirited and they will not indulge this type of bigotry.

Answer: Americans are not inherently any more mean-spirited than anyone on the planet (except for a small contingency from some political... okay—off topic). But the reality is, I think, that Americans are made to feel that they are already giving in to things that run against their belief systems: they will feel themselves to be generous in granting same-sex couples access to some benefits. There are, after all, some 70 million Evangelical Christians in this country. Not to say that they ALL have uniformly strong feelings about gay marriage, but they certainly are under the influence of religious leaders who will not say kind things about this type of union. (n.b., did anyone read the story today about the woman in Texas who was arrested for having sex-toy Tupperware parties? The so-called "Christian" groups are a powerful force.) Can those that align themselves with the groups that repeatedly condemn same-sex marriage withstand the (almost certain to escalate) pressure to support the amendment?

3. One last point for now: there is the ever burning fear of the slippery slope. The perception is that the amendment is necessary so that other forms of marriage that are repugnant to our values wont also be pushed down our throats. Today = same-sex, tomorrow = bigamy. And why not (the argument goes)? The law is suddenly unstable here. Bigamous marriages based on religious beliefs have been rejected by the Court because of our adherence to a traditional belief system that favors monogamy. Oh-oh. That’s it? Gulp.

So, as of today, February 11, 2004, I am predicting that an amendment will pass. And, having said that, let me also say that many things can happen to change the mood of the country or to change my mind. Astrology is a tricky thing.