Democracy, not courts, should make this call

Whether the next president is George W. Bush, John Edwards, or John Kerry, he can neither propose, veto, nor adopt an amendment to the United States Constitution. So how could a constitutional amendment which would define marriage be an issue in the campaign?

In the typical process for adopting an amendment, two-thirds of both houses of Congress must propose the amendment, and three-fourths of the states must approve it through the action of their legislatures.

The only role played by the president is to advocate the adoption or rejection of the amendment from what President Theodore Roosevelt so famously named the “bully pulpit.” (While many people now think of schoolyard thugs when they hear “bully,” Roosevelt used “bully” to mean “fine” or “excellent.”)

Since the president often has the ability to get the attention of substantial numbers of citizens, his advocacy on behalf of one side or the other is no small thing — and that’s what makes the proposed amendment an issue in this campaign.

A president who would attempt to straddle the fence by opposing same-sex marriages while also opposing a constitutional amendment might avoid making political enemies, but would hardly lead us to a resolution of the issue through democratic processes.

In the absence of a constitutional amendment, it appears that a handful of state Su-preme Court justices could force all states to recognize same-sex marriages. Perhaps the U.S. Supreme Court would find a way around it, but it seems probable that the Constitution’s requirement for each state to give “full faith and credit” to the “acts, records and judicial proceedings of every other state” would force every state to give effect to the laws of any state that enacts same-sex marriage laws (or has such laws created by the decision of the state’s supreme court).

As things are now going, it seems probable that one or another state may define marriage as the union of two people — without regard to whether they are male and female or of the same sex.

That is apparently why the people who favor same-sex marriages don’t want a constitutional amendment which would define marriage as the union of a man and a woman. They believe they can get what they want from a handful of justices under the current Constitution.

If same-sex marriage is authorized, the law would have gone beyond tolerance for homosexual behavior and pronounced it and heterosexual behavior to be of equal moral and legal status.

Of the several arguments being made against the proposed constitutional amendment, the one that seems emptiest is that moral beliefs — especially if grounded in religion — should not be the basis for discriminating between one behavior and another.

We normally use law to discriminate. Some things are acceptable or even desirable, while others are neither. Our laws are usually intended to discriminate in favor of the good.

In defining the good, many people attempt to understand how things should be by considering what they think is the law of nature or of nature’s God.

Their effort doesn’t guarantee a good decision, but no basis or process for such decisions by human beings can provide any such guarantee.

The foundation of our form of government was laid by people who sought to conform the structure, function, and limitations of government to the laws of nature and of nature’s God. How odd it is to hear people argue now that religious beliefs ought not to influence decisions about our laws.

Rather than allow the issue to be decided by the most imaginative court, we ought to be deciding it through democratic processes in which many people will be guided by their moral beliefs, whether grounded in religion or not.

Admittedly, there will probably be no consensus about the essential nature of homosexual behavior.

Years ago, it was considered to be a mental disease or defect that might be susceptible to treatment. That point of view was countered by arguments that homosexuality was simply a “lifestyle choice,” which free people ought to be allowed to make.

Having gained some measure of tolerance for homosexual behavior through the lifestyle-choice argument, some began to advocate the idea that it was a congenital condition, not a choice.

They apparently had come to realize that behavioral choices are usually susceptible to legal discrimination.

Now, many people appear to believe that homosexual behavior results from some physical condition over which people have no control.

Perhaps some day we will have a scientific way of answering the question whether people engage in homosexual behavior as a matter of choice, or because of a congenital condition, or because of some difference in their development as they matured.

Should the answer to that question matter in defining marriage? What happens if we never find the answer? What do we do while awaiting the answer?

Whether the answer matters or not, we don’t yet have it; so we ought to proceed as we do in resolving for the present time issues that require resolution — decide through democratic processes how our society ought to be structured.

Those democratic processes include amending our federal Constitution, if that is determined to be the appropriate way of resolving the issue for now.

Since our president has no direct role in deciding whether to adopt such an amendment, consider who does: Our elected representatives in Congress and in the state legislature.

It isn’t an issue that ought to be ignored in choosing a president, but it is more important to pay attention to the views of people who could actually vote “yea” or “nay” in Congress or in Olympia.

Robert Meadows is a Port Orchard resident.

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