IF PRESIDENT BUSH is reelected, it's a good bet that the bloodiest fight of his fifth year in office will have nothing to do with the war or the economy. It will be over the filling of one or more vacancies on the Supreme Court.
If Sen. John Kerry is elected, suspense will quickly drain away from the future of the court. This is true even if the court's nine members, eight of them now 65 or older, confound expectations by staying where they are for another year or two. Because even without turnover, at least five members of the present court will undoubtedly interpret the election of John Kerry as a mandate to complete the social revolution they and other judges have begun.
In the context of a Kerry presidency, there will be five solid votes to throw out Congress's ban on partial- birth abortion. There are five justices who made it fairly clear last term, when they set aside on a technicality Michael Newdow's challenge to the words "under God" in the Pledge of Allegiance, that the right case might well leave the deity considerably more vulnerable.
And, above all, the election of John Kerry will almost certainly mean that six justices would feel free to overturn the 1996 Defense of Marriage Act, clearing the way for same-sex marriage to spread from state to state under the Constitution's "full faith and credit" clause. After all, as one of 14 senators to vote against DOMA on final passage, Kerry attacked the Clinton-signed legislation as unconstitutional and as "gay bashing."
Advocates of same-sex marriage would then be relieved of the need to win even one victory in a referendum or state legislature. More than enough judges at the state level would see to that. As we recently learned in Louisiana, state judges are standing by to invalidate popular reaffirmations of traditional marriage even in states where it commands 78 percent of the votes.
Of course, John Kerry has campaigned this year as an opponent of same-sex marriage. More than once, he has said he agrees with the president on that. More than once, he has said he agrees with voters in Missouri and other states who have carved marriage between a man and a woman into their state constitutions in order to fend off hovering judicial elites. Will those same judicial elites feel free to proceed on their project even if the only prominent candidate who supports same-sex marriage, Ralph Nader, is held to 1 or 2 percent of the national vote?
Such questions are nearly as irrelevant to the judicial revolutionaries as those musty old arguments about whether writers of constitutions, federal or state, intended in their wildest dreams to mandate same-sex marriage. This issue is far from settled even assuming a Bush victory in the election, and subsequent Bush victories in bloody Supreme Court confirmation battles. But legal and judicial elites understand that the election of John Kerry will signal irrevocable victory for the liberal social agenda, most certainly including same-sex marriage.
Kerry clearly wants it that way. The tipoff is in the October 26 issue of the Advocate, the country's leading gay magazine, in a combined profile and interview titled "Kerry's Plan for Gay America."
If you have paused to marvel that such an article is appearing on newsstands little more than a week before the election, you are in good company. The Advocate's profiler/interviewer, Chad Graham, writes that while the last three Democratic nominees, Bill Clinton twice and Al Gore, sat down for interviews in their election years, "Kerry is the only one with the mettle to do it this close to an election. Bill Clinton and Al Gore spoke with the magazine months before facing voters on Election Day. Kerry speaks to us in an issue that will reach readers mere days before November 2."
In the interview, Kerry repeats his opposition to same-sex marriage in language that can generously be described as cryptic: "I have my view, and my view is my view." Why, then, should gays come out to vote for the Kerry-Edwards ticket?
"If they think that they want a Supreme Court with more justices like Clarence Thomas and Antonin Scalia," Kerry replies, "then they should stay home. If they want a Court appointed by John Kerry that's going to fight for equality in America and the fair interpretation of the equal protection clause and due process, this is the most important election of our lifetime."
The passage beginning "fair interpretation" is of course the signal: Kerry's Supreme Court appointees, he is saying, will have views similar to those that led the Massachusetts high court to mandate gay marriage in Kerry's home state earlier this year. This should be posted next to Kerry's "litmus test" for judges on upholding Roe v. Wade, affirmed by the senator under Bush's challenge in the third presidential debate on October 13. This would enable the second Roman Catholic president, John F. Kerry, to continue to hold as a personal view his belief that marriage is between a man and a woman, just as he honors the church teaching that human life begins at conception, while at the same time blackballing any future judge who might vote against abortion or same-sex marriage as mandated constitutional law.
Even with a Bush victory on November 2, then, the revolutionary agenda of judicial elites is very far from being thwarted. A Kerry victory means that enactment of the judge-made marriage revolution is only a matter of time.
Jeffrey Bell and Frank Cannon are principals of Capital City Partners, a Washington consulting firm.