Kerry is asked “what is your position on Bush’s fight to ban gay marriages?” His response, in relevant part:
I believe that the president of the United States should not use the Constitution of the United States for election purposes during an election year. It’s a document that we haven’t touched, certainly with respect to the Bill of Rights, for years, and I don’t think it should be used for the purpose of driving a political wedge through America. . . .
What, though, does the Bill of Rights have to do with it? Kerry’s view is that the Bill of Rights (including the Fourteenth Amendment, which technically isn’t part of the Bill but might be fairly lumped in with it for some purposes) doesn’t protect a right to same-sex marriage. He thinks that states should have a right to adopt it, and apparently he thinks that states ought to adopt civil unions for same-sex couples, but he doesn’t think the Bill of Rights commands it.
But then how would amending the Constitution to ban same-sex marriage be “touch[ing] . . . the Bill of Rights”? It would indeed interfere with the rights of states, and it would bar them from providing extra rights to people beyond what the Bill of Rights commands. But it just isn’t lessening or modifying Bill of Rights protections — unless Kerry really does think that the Bill of Rights mandates the recognition of same-sex marriages.
I realize that Kerry was speaking off the cuff here. But this is a pretty significant substantive point. Kerry apparently wanted to make a constitutional ban on same-sex marriages seem momentous and pregnant with threat to our Bill of Rights protections. (I take it that’s the chief argument against “touch[ing] . . . the Bill of Rights” — if you lessen some Bill of Rights protections, then you’re making it easier for others to lessen still other such protections.) The trouble is that his claim was inaccurate, and if it impressed people rhetorically, it did so by misleading them.
Again, I’ll cut Kerry some slack; he was doubtless tired, harried by the pace of the campaign, and when people speak off-the-cuff they inevitably make some errors. But this was indeed a substantive error — an error that might or might not have been just a slip — and it seems worth noting.
UPDATE: A couple of readers asked: Might Kerry have meant that he thinks the Bill of Rights secures a right to same-sex civil unions, and the Federal Marriage Amendment that Bush backs would repeal such a right?
Well, if that were Kerry’s view — “I think that the Constitution secures a right to same-sex civil unions, and courts should require all states to recognize such unions” — that would, I think, be very big news. But I’m pretty sure that it isn’t his view, given what he says in his remarks:
And I think that’s the way you respect — (applause) — that’s the way you respect both traditional values, but you can allow civil unions, which protects the rights of people in America not to be discriminated against. And I think you can balance that. And I think it’s appropriate to. But I do think that it ought to be left to the states. There’s no showing whatsoever yet that the states don’t have the ability to be able to manage this one-by-one individually, and we have always, throughout history, left the issue of marriage to the states. That’s what I think we should do.
If he thinks recognition of civil unions should be left to the states, then I doubt that he thinks the Bill of Rights demands such recognition. And again the suggestion that the proposed Federal Marriage Amendment would somehow touch the Bill of Rights would be unsound, even under his own view of the Bill of Rights.
FURTHER UPDATE: A couple of readers suggested that maybe Kerry was referring to the Tenth Amendment — a ban on same-sex marriage would trench on the reserved powers of states, and thus “touch” the Bill of Rights. I rather doubt that Kerry was trying to make this point (partly because I doubt that he believes the Constitution protects states’ rights much).
But if he was, then his statement was misleading for another reason: The 26th Amendment, ratified in 1971, reduced states’ Tenth Amendment-secured powers by restricting states’ ability to impose voting age qualifications; the 24th Amendment, ratified in 1964, likewise reduced such powers by restricting states’ ability to impose poll taxes for federal races. More broadly, lots of the Amendments that Kerry likewise endorses — for instance, the 13th (slavery), 14th (equal protection, due process, and more), 15th (no race discrimination in voting), 19th (no sex discrimination in voting), and likely some others, too — would have “touched the Bill of Rights.”
So the Bill of Rights was touched, in ways that Kerry would endorse, on many occasions, including two within the lifetime of most voters. Thus, if “for years” is understood as “for very many years” (the way I think it’s likely to be understood, and the only way that works within Kerry’s argument), then even the rather politically far-fetched Tenth Amendment interpretation of Kerry’s statement proves to be misleading.
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