This is stunning news.
First, here’s a little background to put this development in context. By the middle of 2003, the Federal Marriage Amendment had been languishing in Congress for a couple of years. Its main organizational sponsor, the Alliance for Marriage, had gotten a few congressional sponsors but no prominent politicians had made it a focus of legislative efforts, there had been no hearings on the proposed amendment, and no vote had been scheduled. The president had not lifted a finger to support the effort.
Throughout the last half of 2003, President Bush faced mounting pressure from religious conservatives in the GOP to come out in favor of the amendment. On June 26, 2003, the Supreme Court issued its opinion in Lawrence v. Texas, declaring state sodomy laws unconstitutional and backing the “dignity” and “autonomy” of gay persons seeking to enter “personal relationships.” Justice Scalia ominously warned in dissent that gay marriage was next on the judicial agenda. Opponents of gay marriage figured that now the president would back an amendment. But, at a July news conference, Bush declined to do so, saying only that his lawyers were looking at ways to support traditional marriage.
Then, in November 2003 in Goodridge v. Dep’t of Public Health, the Massachusetts high court ordered that state to become the first in the country to recognize gay marriages. Religious conservatives believed that surely now the president would announce his support for an amendment. Still Bush was silent.
Next, in January 2004, the president gave his state of the union address before a nationally televised audience. Speculation mounted that Bush might take this high-profile opportunity in an election year to urge a constitutional amendment. Surely the president’s lawyers had had enough time to analyze the issue. But beyond some boilerplate rhetoric about protecting traditional marriage, Bush offered nothing to amendment supporters.
Politicos were bewildered. It was an election year. The president’s base was antsy and the war in Iraq was already faltering. It made no sense, politically, for the president not to endorse an amendment. Supporting an amendment would thrill religious conservatives. It would also appeal to traditionally Democratic voters who opposed gay marriage but were otherwise uncomfortable with Bush. At the time, since everyone conceded the amendment had no chance of passing, it would be seen as a symbolic gesture that didn’t really hurt anybody. Those Republicans and independents uncomfortable with an amendment that seemed to them so pointless and unnecessary as to be inexplicable other than as an exercise in gay-bashing, but who otherwise supported Bush on issues like national security and taxes, could overlook his support for the amendment as a necessary concession to a political imperative. With everything to gain among gay-marriage opponents and little to fear from its supporters, Bush’s hemming and hawing made no sense.
It made no sense, that is, unless the president was acting on some principle under which he did not think, no matter the political cost, that we should amend the Constitution and strip the states of all power over the matter in order to cool the hot brow of the excitable partisan. Principle, not politics, must lay behind Bush’s demurral.
Finally, in February 2004, the mayor of San Francisco and a smattering of other local officials around the country began issuing marriage licenses to same-sex couples in their jurisdictions. More than 4,000 gay couples in San Francisco alone signed up. Opponents of gay marriage warned of “chaos” and “lawlessness” and demanded presidential action.
Where Lawrence and Goodridge had failed to budge the president, the actions of these local officials provoked Bush at last. On February 24, 2004, President Bush called a news conference to announce he’d decided to support a constitutional amendment after all. “After more than two centuries of American jurisprudence and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization,” Bush said. The people were losing control over the issue; an alien idea was being forced on them. He also warned of unspecified “serious consequences throughout the country” if a city or state – like Massachusetts — recognized gay marriages even in its own jurisdiction.
Within months, the “chaos” and “lawlessness” brought on by “local authorities” was ended by the authorities themselves, by higher state officials, and by the very courts Bush had said could not be trusted on the issue. The “crisis” of gay marriages ended almost as soon as it had begun. The 4,000 San Francisco marriages, for example, had all been nullified by the California Supreme Court. The states proved quite capable of policing themselves and their officials, as they always had, without the need for a federal amendment. The use of these isolated and now defunct local actions to justify a federal marriage amendment has been a particular embarrassment to FMA supporters.
As for Bush’s stated fear that “a few judges” were undermining millennia of wisdom, two years later no federal court has even come close to trying to force gay marriage on the country — Lawrence notwithstanding. DOMA stands as good law, backed by the sole federal judge even to consider its constitutionality.
Additionally, after two years and more than 8,000 gay marriages in Massachusetts there have as yet been no “serious consequences throughout the country,” about which Bush had worried. No other state is being forced to recognize same-sex marriages performed in Massachusetts. There have been no insuperable complications arising from discordant state approaches to the recognition of same-sex relationships.
And a remarkable thing has begun to occur since Bush’s 2004 announcement, when he warned that unelected judges were usurping the will of the people. The people themselves, acting through their elected representatives, have rebuffed attempts to extinguish gay marriages in Massachusetts, have authorized gay marriages in California, have enacted civil unions in Connecticut, and are considering various forms of recognition for same-sex couples in other places. Gay marriage is no longer simply the cause of litigants, but is increasingly the cause of representative democracies.
In short, just about everything Bush said in February 2004 to justify his support for a federal amendment has been undermined by subsequent experience.
Now, the stunning news. In light of experience, it appears President Bush has rethought the question. He’s called a press conference Monday to address the issue of a constitutional amendment banning gay marriage.
In advance of the press conference, the following news report has just come across my computer screen:
(Washington, D.C., June 4) President Bush will announce at a news conference Monday that he has decided to retract his support for a federal constitutional amendment banning gay marriage, says a source within the National Security Agency who monitored a presidential telephone call to congressional allies on the subject.
According to the NSA source, the president will make the following statement:
“Throughout my time as your president, I have made difficult decisions because I thought they were in the best interests of the country. I have stood by the principles that make this country great, and that have served it well for more than two centuries, regardless of the political consequences to me and my party. I believe the people should keep more of their money and that low taxes produce prosperity for everyone, so I have backed tax cuts that were demagogically denounced by members of the other party as helping only the rich. I believe you can plan better and invest more wisely for your future than the government can, so I have supported Social Security reform that many say is the ‘third rail’ of politics. I believe immigration has made this country great and that people who come here to make a better life for themselves deserve a chance to become Americans, so I have backed a path to citizenship for illegal immigrants despite the intense opposition of many members of my own party. And I think this country has a moral duty to help fledgling democracies and to carry through on its commitments, so I have refused to pull our troops out of Iraq despite the rising unpopularity of the war.
“Two years ago, in this place, I announced my support for a constitutional amendment defining marriage as the union of one man and one woman. I strongly believe that’s what marriage is and should be. If I were a state legislator or a governor, I’d oppose defining marriage in any other way. I supported the amendment because, at the time, I feared that uncontrollable judges and local officials were recklessly and lawlessly playing with the foundation of the American family.
“But I was wrong. Like others, I overreacted to what seemed like an emergency. I did not have sufficient faith in the historic processes of American government. The local officials who were defying state law in 2004 have been brought into line. DOMA is still good law. The states have begun amending their own constitutions to define marriage. I have appointed many federal judges in the mold of Justices Scalia and Thomas, including two to the Supreme Court, who will not tamper with marriage. And while I still fear that some state courts will attempt to redefine marriage in years to come, I am confident that the people in those states can deal with their own courts if that is what they choose to do. After all, that is what we have always trusted them to do.
“We may not like the choices some states make about these matters, but if our nation’s historic commitment to federalism means anything, it means that the states should, within constitutional limits, be allowed to go their own way on important matters of criminal law, property law, and even family law. That, at any rate, has been the dominant practice and theory of our federal design for more than two centuries.
“Never before in the history of the country have we amended the Constitution in response to a threatened (or actual) state court decision. Never before have we amended the Constitution to preempt an anticipated federal court ruling. Never before have we adopted a constitutional amendment to limit the states’ ability to control their own family law. Never before have we dictated to states what their own state laws and state constitutions mean. Never before have we amended the Constitution to restrict the ability of the democratic process to expand individual rights. This is no time to start.
“I know this decision will not be popular with many members of my own party. But it is a president’s responsibility to lead, not to follow, especially when it comes to matters of important principle. As on so many other decisions I’ve made, I will not bow to political pressure when I know better. Two years ago, I should have known better. Now I do.”
Standing by his side at the news conference will be Vice President Dick Cheney, who said in 2004 that he opposes an amendment because states should be allowed to decide the issue for themselves and that “freedom means freedom for everybody”; Sen. John McCain (R-AZ), the leading contender for the GOP presidential nomination in 2008; former Rep. Bob Barr (R-GA), the main House author of DOMA; conservative commentator George Will, who announced on ABC’s “This Week” that he opposes an amendment because state experiments with gay marriage may produce valuable information about whether the reform is worthwhile; conservative policy analyst James Q. Wilson, who likened a federal marriage amendment to that conservative bete noire, Roe v. Wade, in an op-ed for the Wall Street Journal; and numerous other life-long conservatives who have consistently championed federalism.
Also present will be First Lady Laura Bush, who recently said that the gay-marriage issue should be discussed “sensitively” and should not be used for political purposes.
Karl Rove, the president’s senior political advisor, could not be reached for comment.
The news report comes from HSEPA, the Hope Springs Eternal Press Agency.