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An Inconvenient Constitution

4:17 PM, Apr 8, 2009 • By MICHAEL GOLDFARB
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Liberal poll watcher Nate Silver takes exception to my statement that "Democrats in Congress will be hard pressed to side with the District [of Columbia's] Council on gay marriage when such measures have been soundly rejected in solid blue states like California." As evidence he produces some polling showing anywhere from 55 percent to 47 percent of Americans opposed to gay marriage. Silver says "there are now about as many people who favor legalizing gay marriage as do banning abortion."

I'm not exactly overwhelmed by that comparison. A nationwide ban on abortion seems extremely unlikely, and while many Republican politicians would support such a ban in theory, in practice any attempt to legislate a ban (with a Constitutional amendment) would be politically risky to say the least. If gay marriage is equally unpopular with the American public, then one would hardly expect Democrats in Congress to uphold the District's new law recognizing gay marriages performed in other states. Silver says "it is less than obvious that a debate over gay marriage is the way back to the promised land for the GOP." Silver doesn't sound confident that's true, he believes Republicans won't be well served by jamming up Democrats on gay marriage.

The numbers, on the other hand, indicate that this is a better issue for Republicans than most. And of course a fight over gay marriage in the District isn't going to take Republicans to the "promised land," but it will make for good political theater and it will create enough problems for Democrats to make it a worthwhile endeavor. Besides, Republicans have principles, too -- and unlike Democrats they also have the courage of their convictions on this issue.

Silver's larger point, however, seems to be that Americans support a federalist approach to same-sex marriage:

Nevertheless, I'd guess (and this is just a guess -- I can't find any polling on the issue) that most Americans regard it as being more or less like a state, and assume that it ought to have ample discretion to determine its own affairs, instead of having those decisions be overridden by Congressional fiat. Democrats should feel reasonably happy to engage on the issue...

Silver's statistical analysis is all very impressive, his guesswork is no better than anyone else's. On this issue though, polling is irrelevant. Americans may regard the District as "more or less like a state," but it is not a state, and the Constitution does not grant it the same rights afforded to states for the management of their own affairs or representation in Congress. The District of Columbia is a ward of Congress -- another example of great foresight by our founding fathers -- and my guess is that, if Democrats try to make this about a non-state's states' rights instead of gay marriage, they'll fail.