Without the Consent of the Governed
Without a Federal Marriage Amendment, the gay marriage movement is threatening to overturn one of our bedrock legal principles: that all laws stem from the consent of the governed.
11:00 PM, Mar 24, 2004 • By HUGH HEWITT
THE WASHINGTON POST opened its Wednesday coverage of Tuesday's Senate Judiciary Committee hearing on an amendment to the United States Constitution concerning marriage with the hardly neutral declaration that "[d]espite indications that a bill to amend the Constitution to ban gay marriages has little hope of passage, GOP congressional leaders continued to push the amendment yesterday, prompting Democrats to charge that Republicans are orchestrating an emotionally divisive issue for the fall elections."
Such transparently hostile coverage from elite media will mark the amendment's progress through this year and the years ahead, but proponents of the amendment have grown increasingly confident that a sustained battle to defend the thousands of years-old definition of marriage will succeed. They have coalesced around language that would leave civil-union laws untouched and they have been cheered by public opinion polls showing surging support in the aftermath of the antics in San Francisco and elsewhere. Intellectual leaders of the battle are emerging, with folks like Maggie Gallagher and Stanley Kurtz producing the numerous pieces necessary to sustain the argument in today's opinions-by-the-pound environment.
There is one aspect of the debate that has not yet been fully joined, perhaps because it is so simple to state and so impossible for proponents of gay marriage to rebut: It concerns the consent of the governed.
THE CONSENT OF THE GOVERNED is arguably the bedrock principle of the American republic, animating the Declaration of Independence, the Constitution, Lincoln's restatement of the Declaration at Gettysburg, and the 14th Amendment. The great civil rights laws of the 1960s were also built upon the notion that any lasting public ethic had to proceed from an act of legislative will, thus anchoring that ethic to the consent of the governed.
Never in the 228 years since the Declaration has any legislative body at the federal or state level passed any law with the intent of establishing the proposition that two people of the same sex could marry. Not once. The principle of equality between religions was consented to in the First Amendment; between races, in the 14th Amendment; between genders, in the 19th Amendment. Each of these principles had long and difficult passages to majoritarian and statutory status. Courts could not and did not impose them because courts cannot will majorities into being--they can only articulate the implications of previously established legislative actions.
Had the proponents of gay marriage taken their cause to state legislatures, they would have been rebuffed, at least today and in the foreseeable future. Across the country, even in the liberal precincts of California, supermajorities continue to believe that marriage is the union of a man and a woman, and presented with the question on ballots, have continually affirmed the millennia-old standard. And off course the Congress has already passed, by supermajorities in both houses, the Defense of Marriage Act.
FACED WITH THIS WALL OF RESISTANCE, proponents of a radical new view of marriage wish to bypass the consent of the governed and impose their vision. Andrew Sullivan has taken to branding opponents of gay marriage as "theocrats," but of course those seeking to impose their own vision of society--without even a single instance of elected officials acting in legislative bodies to endorse their view--are acting in the tradition currently on display in Iran, where the reigning mullahs do everything in their power to prevent majorities from electing legislatures to represent their own desires and views. The theocrats of the gay marriage movement have set their goals above the consent of the governed.
THE MARRIAGE AMENDMENT is a necessary, indeed urgently required antidote to such a radical assault on the bedrock of the American experience. If imposition of new norms can be accomplished without even one law anywhere ever having being passed, then it can happen again and again whenever willful minorities can persuade robed elites to act without conscience against the idea that all law proceeds from the people.
It has become quaint to quote the Framers or to summon up Lincoln. In an age of Queer Eye for the Straight Guy, Sex and the City, and Howard Stern, there isn't a lot of mileage in arguments about the essence of civil society requiring legislative action. But Lincoln was standing over a cemetery that was the final home to thousands who had died to preserve a union when he described the essence of America as "government of the people, by the people, for the people." There is no law that can be legitimate without the consent of the people.