Andrew Sullivan, Gay Marriage, & Activist Judges

by John Hawkins | July 23, 2004 11:59 pm

Andrew Sullivan whose hatred of religious conservatives is only matched by his love of using “Jesse Jacksonesque” tactics (“Everyone who disagrees with my agenda is a bigot”) to bash his detractors, is furious over a bill passed in the House that’s intended to reign in judicial activism as it related to gay marriage. Here’s what the bill does[1]…

“The bill would strip the Supreme Court and other federal courts of their jurisdiction to rule on challenges to state bans on gay marriages under a provision of the 1996 federal Defense of Marriage Act. That law defines marriage as between a man and a woman, and says states are not compelled to recognize gay marriages that take place in other states.”

Note that this bill does not forbid gay marriage. Even if this bill passed, any state in the nation could still choose to radically alter the definition of marriage in order to allow gay marriage. But, what this bill does do is insure that voters & State Legislatures, not activist judges, will be the ones to decide on whether gay marriage will become legal in a particular state.

Now read Sullivan’s berserk response to this attempt to stop judges from imposing their will on unwilling voters and state legislatures…

“The bill that passed yesterday singles out gay citizens and denies them access to the federal courts to defend their right to marry. Does the Defense of Marriage Act violate the constitution? Then amend the constitution, most Republicans say. If you cannot amend the constitution, knee-cap the courts. And all this is defended with the rhetoric of a man like James Sensenbrenner, who declared, “Marriage is under attack!” By whom, sir? All gay people want is to join civil marriage, and be an equal part of their own families. To describe this deep human need, this conservative impulse, as an “attack” on an institution revered by many homosexuals and their families is itself a piece of callous demonization. And the precedent is chilling. If gays can be singled out and denied access to the courts, why not other minorities? Blacks? Hispanics? If the Republicans can do this to exclude gays from access to the courts, why couldn’t Democrats one day do it to prevent conservative Christians? I loved this quote from a news story:

The nonpartisan Congressional Research Service said it could find no precedent for Congress passing a law to limit federal courts from ruling on the constitutionality of another law, although Democrats said opponents of civil rights legislation tried to do the same thing.

Yes, today’s Republicans are now the inheritors of those Democrats who did all they could to prevent African-Americans from winning their civil rights.”

If you didn’t want to wade through all of that, here’s a summary “Blah, blah, blah, demonization, blah, blah, blah, chilling, blah, blah, blah, Republicans vs. minorities, blah, blah, blah.”

Now, I know most of you are probably thinking, “Andrew Sullivan is for gay marriage and likes trashing Republicans? What are you going to tell me next, that Yasser Arafat doesn’t like Jews?”

There is a point to this however, that being Andrew Sullivan’s staggering hypocrisy on this issue.

You see, the primary argument[2] pro-traditional marriage conservatives have used to explain why a Constitutional Amendment is necessary in this circumstance is, “Either we pass a Constitutional Amendment that stops marriage from being irrevocably altered or activist judges will simply impose gay marriage over the objections of the voters and State Legislatures”.

Here are some examples from a response to Stanley Kurtz that show you just how thoroughly Sullivan[3] has rejected this reasoning…

“Yes, of course you can find some legal activists who want to try and use the Full Faith and Credit Clause to nationalize marriage immediately. But they won’t succeed; they have no legal precedents; and their legal argument is extremely weak – as even they often concede. Yet the default position of the far right is the notion that marriage in one state automatically means marriage in every state. That argument is the one with resonance around the country, and it’s an argument designed to foment a sense of urgency about stopping any state from amending its laws now. It was the sole reason for the appalling Defense of Marriage Act. And it’s phony.

…My argument was simply that legal marriage for all citizens in one state doesn’t mean it will be automatically extended to every other state. I was trying to rebut that notion – very slyly inserted into the debate by the far right (and some on the left) for the past several years. Now to the broader point: there is a big difference between saying that if marriage becomes legal in Massachusetts, the Constitution will make it legal in every state because of the Full Faith and Credit clause; and saying that one day the Supreme Court might rule on the matter on the grounds of equal protection, invalidating all bans on same-sex marriage. Theoretically, the Court could make such a ruling even if there’s not a single state with equal marriage rights. In other words, it’s a completely separate issue. And as a matter of law and politics, it’s very, very unlikely that such a thing will happen any time in the foreseeable future.

…I think the denial of marriage rights to 3 percent of the population is a grotesque denial of a basic civil right – more profound than denying the right to vote, in fact. One day in the distant future, SCOTUS may see that. But that doesn’t make it likely, or even conceivable within the foreseeable future.

…Oh, please. Stanley needs to calm down. This court hasn’t even legalized private, consensual sodomy yet. And he thinks it’s going to nationalize gay marriage in the next few years?

…But more significantly, you’ll see that his equal protection argument in this piece is not about same-sex marriage as such, but about DOMA. Again, that’s a separate issue. My view of DOMA – which is shared by many legal scholars far more knowledgeable than I – is that its constitutionality is a moot point. It wasn’t necessary in the first place; it would make no difference to the issue of state recognition of marriage if it were repealed. Whatever mechanism is used to invalidate some of its clauses – equal protection or otherwise – is therefore irrelevant. My own reference to equal protection, in contrast, refers to a completely different context, as I’ve already explained. It’s about whether SCOTUS, as it did in Loving vs Virginia, might one day simply point out that all these marriage laws are baldly designed to prevent a minority from exercizing a basic constitutional right. I don’t think any serious constitutional expert thinks such a ruling is likely any time soon.

..But again, Kurtz seems confused about equal protection challenges to DOMA and to state DOMAs and equal protection challenges to hetero-only marriage as such. A simple point: even if parts of DOMA are eventually struck down by the courts, as they should be, it makes no difference. The only vulnerable parts are those that affirm the right of states to resist another state’s marriage laws. But that’s already the law. The situation will be utterly unchanged from the present.”

Sullivan goes on and on and on, hammering these points incessantly throughout the post. But, if Sullivan actually BELIEVED his own spiel, he’d be the first person in line to support this bill.

Follow me here: Sullivan is obsessed with gay marriage and stopping a Constitutional Amendment, right? Furthermore, he claims to believe that supporters of the Federal Marriage Amendment who think judges will impose gay marriage are wrong, that it’s “very unlikely that such a thing will happen any time in the foreseeable future”.

If that were true then would this bill not be the answer to Andrew Sullivan’s dreams? DOMA or no DOMA, Sullivan says gay marriage isn’t going to be forced down any state’s throat by judges, right (well except in Massachusetts where it has already HAPPENED)? However, if this bill were to become the law of the land, it would take away the “primary argument” conservatives like me have used to make a case for a Federal Marriage Amendment, which would in effect make a Constitutional Amendment a dead issue.

Given all of that, you’d think Sullivan would be spending almost as much time on his blog talking up this bill as he does attacking Republicans, the Bush administration, and those all those devout Christians that he loathes so much.

So why does Andrew Sullivan really oppose this bill? Because like so many other advocates of gay marriage, he’s being deceptive about his desire for the judiciary to get involved.

You see, if Sullivan is going to make his gay marriage obsession a reality, the decision is going to have to be taken out of the hands of the voters and put into the hands of activist judges. Currently, there’s not a single state in the union where gay marriage has the support of a majority of voters, including Massachusetts where it’s now legal. Moreover, 38 states[4] have passed “Defense of Marriage” acts that define marriage as the union between one man and one woman and that permit states to reject gay marriages from other states”. So if you’re inclined to wait for most of the voters to come around to gay marriage, you’re probably going to be waiting at least a generation or two….if you’re lucky.

Many advocates of gay marriage, Sullivan included, don’t want to play that game. They want gay marriage now and they’d rather try to appeal to “enlightened” judges out there who are willing to legislate from the bench rather than wait for the “unwashed masses” to come around to their way of thinking. And if they have deceive people about what they’re doing, well…they figure it’s OK to be dishonest if it’s for a good cause. Right Andrew?

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