Richard Goldstein
By Amending the Constitution, the Right Hopes to Ban What It Canšt Stop

Ralph Reed, who put the Christian Coalition on the map, gave that group some surprising advice when he left it to become a political consultant in 1997. Reed urged his co-religionists to stop making repression of gay rights the centerpiece of their politics. His conservative clients'most notably George W. Bush'have done just that, pursuing policies that advance homophobia by stealth rather than statute. But in the past month, the Republican right has shown how productive an overtly antigay agenda can still be. )
First, Congress passed a law denying federal funds to school districts that withhold support from the Boy Scouts. Then the House passed a bill that exempts programs run by religious charities from state and local antidiscrimination laws. This resolution, now pending in the Senate, is the most regressive labor law since the 1950s. It would allow a Christian group that denies jobs to Jews to qualify for federal money. Yet the debate over the bill focused on homosexuals. It shows how far most of us are from understanding that gay people are canaries in the coal mine when it comes to civil rights.
Now comes an attempt to amend the U.S. Constitution, not in order to expand liberty but to deny it to a whole group of Americans'guess who? The proposed 28th Amendment would not only define marriage as a bond between a man and a woman, but deny the legal incidents of marriage to anyone else. On July 12, a group of conservative scholars and religious leaders'with black ministers up front'held a press conference to launch what they expect to be a 10-year campaign. Its object is not just to outlaw same-sex marriage but to undo the rights that gay couples have gained.
Our view is that the clear meaning of not providing 'the legal incidents' of marriage means we cannot offer any rights that would be reserved for married couples, says Christopher Anders, legislative counsel to the American Civil Liberties Union. Local statutes allowing unmarried partners (of either sex) to share health plans, leases, pensions, hospital visits, and even the adoption of each other's children, would be nullified. This is why the ACLU calls the proposed amendment a nuclear bomb. Gay couples are ground zero, but its impact would radiate across American society.

The good news is that an amendment is very hard to ratify. Two-thirds of both congressional houses (or a constitutional convention) and three-quarters of the state legislatures must sign on before the process is complete. Despite overwhelming support, the nearly 12-year-old flag-desecration amendment has yet to make it past these hurdles. Those who remember that may be inclined to regard the marriage bomb as a paper tiger. But as Anders points out, Most people have no idea that the flag-desecration amendment is still around. Just this week, the House passed it with 209 votes [nine more than necessary]. In the last Congress it failed by only two Senate votes.
That's why the ACLU is now on high alert. There's definitely activity going on around this [marriage amendment], Anders says. I got two calls this morning from senators asking for more information because they're starting to hear from constituents.
The amendment has already run into the split between social conservatives and libertarians of the right. Last week, The Washington Times, no friend of the cohabiting masses, came out against it, while the more sectarian National Review backed it. As for the Bush administration, it is hewing to Ralph Reed's line and staying neutral (so far). It's unlikely that the amendment will be introduced until its sponsors have firmed up their support. That may take some doing, since this sweeping proposal stands in stark contrast to the almost sacred conservative belief in local control. But when it comes to gay rights, many conservative principles go out the window. And nothing raises the stakes like same-sex marriage. Here the right has broad support.
Thirty-four states have passed laws that resemble the federal Defense of Marriage Act, which allows states to ignore Civil Union statutes like the one in Vermont. Voters in Alaska and Hawaii have amended their constitutions in order to overrule court rulings expanding marriage rights. This explains why the amendment's sponsors are couching it as an attempt to curb judicial fiat. They won't succeed in the short run, but what will happen as the world turns?
It's no longer true that marriage means the same thing in every nation. Only Holland has true same-sex marriage, but many countries'including France, Germany, Portugal, Canada, and the Scandinavian states'offer some version of what the French call civil solidarity pacts. And despite the warnings about God's wrath descending, there's been little opposition in America to employers and local governments offering domestic-partner benefits.
But there are crucial incidents of marriage that this halfway status doesn't provide. Last week, the city of Tampa regretfully announced that it could not extend survivor benefits to the same-sex partner of a female police officer killed in the line of duty. There are gay couples who can't adopt each other's kids in states where only married people can do that? And what about a lesbian mother forbidden to see her children because she lives with another woman? These inequalities are a major reason why there is broad support for expanding domestic-partner benefits in liberal states. California is about to do just that. As the momentum builds, so will the backlash'especially since more and more heterosexuals are choosing something other than marriage for at least part of their lives.

This is the real crisis the traditionalists are trying to address in their usual preemptory way. The structures of intimacy are changing, and new forms are evolving to suit these innovations. The question is whether the state should subsidize marriage in the orthodox sense while turning its back on the many varieties of reform practiced by millions of cohabiting couples, young and old, straight and gay.
The slippery slope will definitely be in sight if this amendment is ratified. Next, conservatives will go after no-fault divorce and other entitlements of the self-determined life. Yes, your freedom is at stake, but there's an even more important issue here. If you believe, as liberals do, that the main purpose of government is to alleviate pain, then the right to marry takes on a tangible urgency. Should couples suffer because of how they structure their relationships? Should lovers have to carry health-care proxies in order to visit each other in the hospital? Should children pay a price because their parents aren't wed? Or should these unions be codified in an equitable way?
Some libertarians think the state should abandon marriage entirely, leaving it to religious institutions as was done in the Middle Ages. We can debate that in an alternate universe. The question before us now is whether to inhibit liberty and promote pain in the name of tradition. The answer, as Bob Dylan sang (in his pre-conservative days), is blowin' in the wind.