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 Same-Sex Marriage 
and the Living Document

March 4, 2004

“According to definition,” Hilaire Belloc wrote, “the ideal citizen of this Modern State must be free to act on his individual judgment of morals, must reach conclusions on all matters by private judgment, but must accept the coercion of any law whatsoever when it has been decided by a majority of such individual citizens so concluding.”

That about sums it up. The Modern State, now called Democracy, has no moral principles, but we have a duty to obey it anyway. Why? Majority rule, you know.

But sometimes the courts overrule the majority, in which case we have a duty to obey the courts. Why? The Constitution, you know. But a big enough majority can change the Constitution. But so can the courts, because it’s a Living Document. It gets confusing.

Which brings us to same-sex marriage. Nobody ever heard of it until ten years ago — the sodomites of antiquity weren’t loopy enough to think of it — but now it’s hot stuff and some say the Constitution protects it, even though the Founding Fathers never heard of it. Even Earl Warren, William O. Douglas, and Harry Blackmun never heard of it, though I’m sure their faces would have lit up if they had. Those guys knew a brilliant opportunity for the Living Document when they saw one.

But Thomas Jefferson, if he were here, might have been a wet blanket on gay marriage. He thought sodomites should be castrated. And he was a quite a liberal for his day. We can only guess at how he’d have dealt with Rosie O’Donnell.

There was at least one example of same-sex marriage in ancient times: the Roman emperor Nero married a boy, but only after having him castrated. This may have been a myth started by his enemies, according to a new biography, and in any case it might not qualify as a same-sex marriage under today’s redefinition. Hard cases make bad law, even in San Francisco. But it suggests that Nero, in his own way, had enough respect for the institution of matrimony not to attempt an ordinary same-sexer. Depends how you look at it, I suppose.

[Breaker quote: And the emperor Nero]Since we no longer agree on what the meaning of is is, let alone sex, it’s no wonder we can’t agree on marriage. Alice Roosevelt Longworth once said that Thomas Dewey looked like the groom on a wedding cake, a show-stopping witticism when she made it, but today the obvious retort would be, “Which one?” Christopher Hitchens favors same-sex marriage not only because it sort of goes with hating Mother Teresa and Mel Gibson but also because he and his wife, who is a woman, live on the same floor as this really, really nice gay couple and if that isn’t a good reason for changing an ancient institution I don’t know what would be.

Meanwhile, a prosecutor in one of the coastal states (I didn’t catch which one) has said he won’t indict a local mayor for performing illegal wedding ceremonies until the state’s attorney general has ruled on the constitutional question. That’s the thing about constitutions. You never know what they mean until someone else decides for you. After all, they are living things. Unpredictable.

Opinion polls run heavily against same-sex marriage, but that’s exactly why we need the Constitution. After all, if the majority were sovereign, Al Gore would have won the 2000 election, and — wait! The people who favor court-imposed same-sex marriage are the very people who still insist that Al Gore is our rightful president but was robbed by the U.S. Supreme Court! Like I say, it gets confusing.

What would a Gore administration have been like? If you’re really curious, you can vote for John Kerry. Personally, I wouldn’t want that on my conscience, for all kinds of reasons. But as for the issue at hand, Kerry opposes same-sex marriage, but he also opposes a constitutional amendment banning it, presumably because he knows a lot of really, really nice gay couples, but also because he believes fiercely in the Tenth Amendment, which leaves the question of racial segregation to the states. As a liberal, Kerry is personally opposed to racial segregation, but he doesn’t want to impose his views on others.

Hey, this is America!

Joseph Sobran

Copyright © 2004 by the Griffin Internet Syndicate,
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