CONSTITUTIONAL OPINIONS: The Misuses of Compassion
Arkes, Hadley
CONSTITUTIONAL OPINIONS HADLEY ARKES The Misuses of Compassion IBERAL PUNDITS HAVE BEEN EXERCISING their genius to deny that the presidential election produced a mandate of any kind, but...
...A chorus of conservative activists responded forcefully in pointing out that the President could not count on even 50 votes for reform of Social Security, and yet he was not taking that uncertainty as a ground for backing away...
...No one seemed to doubt, after the election, that this surge of conviction on the part of the public formed part of the current that carried George Bush to a convincing re-election...
...Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College...
...Bush had far more to do with issues like gay marriage than with a sudden willingness to change Social Security...
...But if he is lured in this case, the results will be quite unlovely...
...But in the recent run of cases, stretching back several years, the Court had swept aside any provision of law that cast an adverse judgment on homosexuality...
...The public is primed now to act...
...The judges for a moment seem chastened, but it would be a grave mistake for the political leadership to hold back right now...
...They could have held back only out of prudence—only because they sensed that the sentiment of the public had now swung decisively against them...
...But Kennedy and his colleagues could not have been holding back in principle, because they bore any doubts themselves about the wrongness of the law in Florida...
...For Mr...
...CONSTITUTIONAL OPINIONS HADLEY ARKES The Misuses of Compassion IBERAL PUNDITS HAVE BEEN EXERCISING their genius to deny that the presidential election produced a mandate of any kind, but the Supreme Court in January provided some rather unequivocal evidence that it did...
...A vote in the Senate this year will bring five or six more votes for the Amendment, and Democrats pondering a vote against the measure will be casting a nervous eye on the polls back home...
...And yet, nothing in the State of the Union suggested that Mr...
...that it will stay with us until it is resolved...
...His most recent book is Natural Rights & the Right to Choose (Cambridge University Press...
...But some Republicans, noting the same stunning effects, find a convenient reason of their own to pause: The resistance to gay marriage within the states had been so emphatic that there may be less reason now, they think, to push on with the vexing business of a federal amendment on marriage...
...The argument might be condensed in this way: If the legislature is willing to grant every legal benefit and attribute of marriage to a couple, but simply holds back the name of "marriage" for couples of the same sex, the implication should be clear: There is something in that class of persons not worthy of the name of marriage...
...The laws that have barred fathers from marrying daughters have implied nothing disparaging about fathers or daughters...
...Bush, the lure to be "nice" is woven into his character...
...And the truth that dare not speak its name is this: the scheme of "civil unions" is simply geared to keep generating these invidious distinctions, in the way that the traditional laws on marriage do not...
...Bush is drifting into in this case...
...Thanks to the handiwork of Justice Anthony Kennedy, a state could no longer incorporate in its laws a moral objection to homosexuality, or a refusal to regard homosexuality as any less legitimate than that sexuality "imprinted in our natures...
...But all of that, of course, is less likely to happen when the President conveys the sense, at the center of things, that the issue has become far less urgent...
...That act, passed in 1996, was meant to shore up the authority of the states to refuse to recognize gay marriage...
...For there is no reason to expect that the judges themselves will hold back from resuming the long march to same-sex marriage when public anxiety subsides and the moment comes to press on again...
...In that vein, he has expressed a willingness to support some version of "civil unions," or some arrangementsthat would give, to gay and lesbian couples, some of the privileges and protections that arise for married couples...
...For Mr...
...this is precisely the time to press on with the business at hand...
...The President took the point at once, and with the State of the Union address, he sounded again—and sounded forcefully—the determination to vote yet again on the amendment on marriage until the Congress gets it right...
...Or to people with disabilities...
...He had been advised that there weren't votes enough in the Senate to pass an amendment on marriage, unless a federal court struck down the Defense of Marriage Act (DOMA...
...As we are discovering, the surge of votes for Mr...
...But if he is lured in this case, the results will be quite unlovely, and strikingly less than nice for all of those people—especially children—who have a stake in preserving marriage as an institution, and the marriages they know...
...Even in liberal Oregon, 57 percent of the voters had voted to affirm marriage as the union of a man and woman as husband and wife...
...In rejecting the scheme, the judges lifted the curtain and revealed perhaps even more than it was politic for them to reveal...
...The warning then has been clear: If the laws incorporate a scheme of civil unions, granting all of the privileges of marriage but withholding the name and the imprimatur of marriage, the courts have all the leverage they need to strike down the traditional laws of marriage...
...But no one who has followed the courts would bet any longer that the judges will uphold DOMA when it is challenged...
...Bush, the lure to be "nice" is woven into his character...
...He told interviewers in the Washington Post that he would not urge Congress to take up again the constitutional amendment...
...Happily, the President was pulled back here HADLEY ARKES from harm's way by his friends...
...Bush had altered in any way his inclination to make a gesture of "compassion" to temper his commitment to an amendment on marriage...
...And the evidence could have come only from the election: Eleven states had voted for a constitutional amendment to bar their own judges from installing same-sex marriage...
...The Court refused to review a judgment of a federal appellate court upholding a law in Florida that barred homosexuals from adopting children...
...The activists bringing the case in Florida had every reason to expect that the Court would readily strike down this lingering vestige of what Kennedy has called an "animus," an unreasoned prejudice, in the law...
...March 2005 THE AMERICAN SPECTATOR 41 f yuyck *4 ;4...
...In other words, it is precisely the scheme of creating the parallel substance of marriage, and withholding the title, that picks out classes of people in a disparaging way...
...That the Court would refuse, however, even to hear the case suggested that even Justice Kennedy was holding back...
...The sense can take hold easily that this issue will not abate...
...And just days before his second inauguration, the President was already absorbing the same hesitations...
...Consider how the same legislation would have appeared if the substance of marriage were given to couples, but only "civil unions" given to dwarves...
...0 N THIS MATTER OF "CIVIL UNIONS" we no longer have an excuse for being fooled, for the Supreme Judicial Court in Massachusetts has already given us proper warning...
...But there is always a risk that with a tug of sentiment we maybe led into positions that undercut, or even negate, our moral judgments...
...40 THE AMERICAN SPECTATOR March 2005 The meaning of the election was stunning enough to gay activists that they are now pausing to rethink their strategies...
...In an effort to head off gay marriage in Massachusetts the state senate offered to the court a scheme of civil unions...
...And I fear that is what Mr...
Vol. 38 • March 2005 • No. 2
