AT A speech to the Republican Governors' Association on February 23rd, George Bush argued that voters face a stark choice between “two visions of government”: one (his) that encourages individual freedom, the other (the Democrats') that “takes your money and makes your choices”. Twelve hours later, he presented Americans with an equally stark question: do you want a constitutional ban on gay marriage? By any measure, this would take away gay Americans' choice. By supporting the proposed ban, President Bush has re-ignited the culture wars, given a new, possibly nastier character to the presidential race and committed America to a long, maybe unresolvable, debate about fundamental mores.
America's culture wars have the virtue of ventilating profound questions of personal behaviour and responsibility. Their drawback is that they are sometimes poisoned by majoritarian actions. So it may be this time. The underlying issue of gay marriage turns on basic attitudes towards sexuality, on the extent to which marriage should be buttressed by law, and on whether gay marriage would undermine the institution itself. But the particular form in which the issue is now being presented—as a proposed amendment to the federal constitution—raises questions about who should make decisions like this and what is the proper role of the state and federal governments.
Supporters of a constitutional ban want to stop gay marriages everywhere, of course. But in practice they focus on a slightly different issue: how to stop gay marriage spreading from state to state through a clause in the constitution that says “full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.” The fear is that, as the president put it, “some activist judges and local officials” will permit gay marriage in one place. Gays from all over the country will then rush to marry, return home and sue in their home state's courts to have their marriage contract recognised. In support of this view, proponents of the ban point out that, in practice, states always recognise each other's marriage laws. Gay marriage would be no exception.
They point out that the federal government has twice stepped in to strike down marriage laws deemed acceptable in one state but not elsewhere. In both cases, this involved polygamy among Mormons, first when Lincoln banned bigamy in 1862 (the Morrill Anti-Bigamy Act) and again in 1890 when the federal government insisted Utah outlaw polygamy as a condition of becoming a state. If the feds can ban polygamy, why not gay marriage too?
Lastly, they argue, a constitutional ban would stop only marriage among homosexuals, not civil unions. States could still, they claim, write their own laws granting gays some legal rights short of marriage, as Vermont has done.
Opponents of the ban reject these arguments one by one. Most important, they say, proponents are factually and legally wrong about the constitution's “full faith and credit” clause. It has long been established in law that if an issue comes within the purview of states, and if states have their own public policy on that issue, then they do not have to recognise another state's law. This exception is essential to the operation of the federal system itself, which would otherwise be rendered meaningless.
There is no doubt that marriage is a matter for the states, not the federal government. It has been so for centuries. There is no doubt that many states have their own policy, since 38 have passed “defence of marriage acts” defining marriage as the union of a man and woman. It is true, opponents concede, that states have always recognised each other's marriage laws. But that was because there was consensus. Now that the consensus is fraying, Texas (say) will not be required to recognise a gay marriage made in Massachusetts. The result will be messy, but that is the price of federalism.
Moreover, opponents of a ban point out, the “full faith and credit” clause gives Congress a role in deciding “the manner in which such acts, records and proceedings shall be provided”. Congress made clear its view by passing, in 1996, its own Defence of Marriage Act. In sum, opponents say, the constitutional defences against extending gay marriage by judicial activism are strong.
Lastly, they claim, proponents of a constitutional ban are plain wrong—or lying—when they say their amendment would permit civil unions. As it stands, the proposal before Congress would prevent “marital status or the legal incidents thereof [being] conferred upon unmarried couples or groups”. If the phrase “legal incidents thereof” means anything, it must refer to civil unions. These would be banned.
Could such an amendment pass? Since the Bill of Rights, there have been only 16 amendments in 200 years. Most guarantee or extend the operation of democracy (such as women's suffrage), rather than defend social norms (such as Prohibition). Any amendment requires the approval of three-quarters of the states, plus a two-thirds majority in both houses of Congress.
This looks hard, but is not out of the question. Three-quarters of the states have passed laws banning gay marriage, though some might vote against an amendment on states'-rights grounds. The decisive factor, though, will be public opinion.
It is often said that Americans disapprove of gay marriage but support civil unions. Not so. Gay marriage is more unpopular than unions (about 60% dislike the former), but, depending on how the question is asked, a small majority disapproves of civil unions too. That suggests that public pressure on legislators could be strong.
But opinion is fluid. It is sensitive to news. Support for an amendment rose when the Supreme Court struck down Texas's sodomy law last year. It shifts depending on how the debate is framed: the more you talk about equal rights under the law, the greater the support for civil unions. And there is a yawning generation gap: 55% of 18-29-year-olds support gay marriage, but only 21% of those over 65.
Mr Bush may therefore be taking a bigger political gamble than is apparent on the surface. Democrats complain that by supporting a constitutional ban he is seeking a “wedge issue” for the election (something that splits Democrats but unites Republicans). And it is true that Republican-voting evangelicals strongly support a ban, and may well turn out in even greater numbers as a result. But Republicans too are split on the ban. Libertarians dislike legislating on sexual behaviour. Federalists deplore the proposed overriding of a core competence of states. Around 1m gays voted Republican in 2000.
So there are costs as well as benefits for the president. And those costs may spread to the country as a whole. In Roe v Wade in 1973, the Supreme Court imposed a uniform law on a country divided and in flux on abortion. The issue still splits the nation. A constitutional amendment would stop state experimentation and impose a national norm on a country divided and in flux about gay marriage. Debate could fester for years.