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Who writes rights and rites?

Mike Marchand | Monday, March 15, 2004

Whoever thought “Constitutional amendment” and “Rosie O’Donnell” would be used in the same column? I did not. And yet, here we are, in the midst of a cultural and Constitutional crisis that could very well turn into a cultural and Constitutional war. And who is responsible for this? Why, George W. Bush, because he supports a Constitutional amendment which would codify marriage as only for heterosexuals. “The president launched a war … against the civil rights of gay citizens and their families,” said gay advocate (and otherwise fairly conservative) Andrew Sullivan.Much as I respect Sullivan, he is wrong on this one: he did not launch the war, he is merely firing back. The war was launched last month by the Massachusetts Supreme Court, who, by a slim 4 to 3 margin, ruled that the state’s marriage laws discriminated against homosexuals and will therefore sanction gay marriages in May. They were soon joined by San Francisco mayor Gavin Newsom, who issued same-sex marriage licenses (including one to Rosie O’Donnell and her partner) in defiance of California state law, and by officials in New Paltz, New York, Portland, Ore. and Sandoval, N.M.To a certain extent, Sullivan and supporters of gay marriage have a point: it is unreasonable that the rights of marriage are not extended to homosexuals, and the time to grant them that right has long since passed. It is also patently ridiculous to stand opposed to same-sex unions by carrying the banner of “the sanctity of marriage” when quickie Britney Spears Vegas weddings and easy no-fault divorces have all but shredded whatever sanctity the act of marriage once had. What God has united, man has been tearing asunder for decades, and it is offensive that social conservatives are only now drawing the line in the sand when homosexuals want for themselves what heterosexuals (or at least half of them) take for granted.At the same time, those who oppose gay marriage have a valid point, though it is lost in all of the defense of marriage rhetoric. For starters, marriage is not a civil right: it is a religious construct that was later interpreted as a legal construct. The only difference between a publicly married couple and a couple who have exchanged rings and vows privately is that in one case their state has given them a certificate that legitimizes their action. In a sense, a man can marry a woman, a man, a Shetland pony, or a Swiffer WetJet, but only in certain cases will the state recognize them with rights as a union. And those rights as a union are what are central to the argument, not the term “marriage” versus “civil union.”But civil union rights are civil rights. The problem is when this effort is compared with other civil rights struggles: they do not even come close. In the case of African-Americans, they were seeking the rights that had already been granted to them through the Fourteenth Amendment but had been stolen from them by Southern states and, to our eternal shame, ignored for a century. And women’s suffrage was achieved not by activist politicians and justices merely allowing it, but by the rule of law, beginning in Wyoming in 1869 and culminating in the Nineteenth Amendment in 1920.Most Americans, including the President, have no problem with homosexuals. They do, however, have a problem with judges and politicians making end runs around laws in order to achieve their ends. Which is why just about the only defense against it is taking the (horribly named) Defense Of Marriage Act of 1996 (signed by Bill Clinton, hardly an extreme right-winger) and making it a Constitutional amendment. However unfortunate the idea of a Constitutional amendment forbidding gay marriage might be, at least it is being forwarded in the allowable fashion of being approved by Congress and ratified by the individual states, just as the Fifteenth and Nineteenth Amendments were.For almost every other hot-button topic, we disdain renegades who consider themselves above the law. For example, Alabama Chief Justice Roy Moore, acting on his own, hauled in a massive monument of the Ten Commandments and then refused to remove them. For his actions, he was vilified and eventually suspended from his duties. Such should also be the punishment for Gavin Newsom, who’s a hero in San Francisco but a criminal according to California state law. As for the Massachusetts Supreme Court, that is a far trickier problem to solve, and overreaching judicial activism is a much broader topic that can wait for another day.For the rest of us, can’t we have a compromise? There is a difference between the rites of marriage and the rights of marriage, and it should not be bigoted to suggest so. Either way, I hope I will never have to mention Rosie O’Donnell ever again.

Mike Marchand, a 2001 graduate of Notre Dame, also supports closer-to-home gay organizations, such as OutreachND. He can be contacted at Marchand.3@alumni.nd.edu. “Undistinguished Alumnus” normally appears every other Monday.The views expressed in this column are those of the author and not necessarily those of The Observer.