Krauthammer on icky gays …

Posted by Joshua Holland at 6:43 AM on June 12, 2006.

Witness, as Krauthammer argues, simultaneously, that we don't need to amend the Constitution to keep them dirty homos from getting married -- yet -- while also asserting that every specious, wing-nutty argument the homophobes employ in the marriage debate is spot-on*.

It's what makes him the best.

On Wednesday the Senate fell 18 votes short of the two-thirds majority that would have been required to pass a constitutional amendment banning gay marriage. The mainstream media joined Sen. Edward Kennedy in calling the entire debate a distraction from the nation's business and a wedge with which to divide Americans.

Since the main business of Congress is to devise ever more ingenious ways (earmarked and non-earmarked) to waste taxpayers' money, any distraction from the main business is welcome.

Well, yeah, I guess it's better for the Congress to debate pointless Constitutional amendments than wasting taxpayers' money. On the other hand, they could be dealing with, I dunno, the 45 million Americans without healthcare or any of a dozen other real problems we face. But, either way.

As for dividing Americans, who came up with the idea of radically altering the most ancient of all social institutions in the first place?

Hmmm, tough question. The idea that women had rights within marriage -- that marriage was more than a contract for human chattel -- originated in ancient Egypt, at least in theory. "The most ancient of all social institutions" was widely polygynous until ancient Greece -- although concubines were the norm for fashionable Athenians. The idea that marriage requires a formal ceremony, with a cleric and witnesses and stuff like that only dates back -- in the West -- to the 16th century, so maybe the guilty party is the Council of Trent, which decreed in 1563 that marriages should be celebrated in the presence of a priest and at least two witnesses.

The institution of marriage has been so fluid, and has been 'radically altered' so many times in so many fundamental ways that it's almost impossible to pinpoint who came up with the idea "in the first place."

You get the picture, but let's see where the Krauthammer's going with it:

Until the past few years, every civilization known to man has defined marriage as between people of opposite sex.

That stands in stark opposition to all those civilizations not known to man -- the pixies, leprechauns, hobbits and those folks from Atlantis. They marry willy-nilly -- hooking up with sirens, mermaids and wood nymphs of varying genders -- and their moral relativism has put them on a slippery slope; they're destined to destroy themselves in hedonistic orgies of bloody cannibalism.

To charge with "divisiveness" those who would do nothing more than resist a radical overturning of that norm is a sign of either gross partisanship or serious dimwittedness.

I would have said "dimwittitude," but I'm grossly partisan.

And that partisanship and dimwittedness obscured the rather interesting substance of the recent Senate debate. It revolved around the two possible grounds for the so-called Marriage Protection Amendment: federalism and popular sovereignty.

More accurately, the Senate debate revolved around whether banning same-sex marriage would preserve Western Civilization As We Know It, or was just more Republican pre-election pandering.

But I'll give Charles a bit of credit here: he makes quick work of the states' rights argument, pointing out that the Defense of Marriage Act --DOMA -- prevents same-sex marriage from jumping from state to state, and there's no reason to think it'll be overturned anytime soon, especially with the Supreme constituted as it is today.

Which brings us to the crisp cookie of lucidity in the middle of Krauthammer's reactionary nougat:

Once the constitutional amendment is passed, should the current ethos about gay marriage change, no people in any state could ever permit gay marriage.

That's exactly right, and CK knows that in 20 or 30 years those arguing against gay marriage today are going to regret it as much as those who argued against interracial marriage a few decades ago.

Anyway, it's not long before Charles breaks the spell, ruining the moment of clarity completely:

Gay marriage is a legitimate social issue to be decided democratically. The problem is that imperial judges are legislating their personal preferences, striking down popular will and calling it constitutional law.

Most notoriously, in Massachusetts a total of four judges out of seven decided that the time had come for gay marriage….

That's right, Massachusetts' highest court has seven judges, and rules by majority. Creepy.

This argument is a perfect example of why a highly-educated populace is so dangerous to conservatives; constitutional scholars and historians studying the Supreme Court have argued, correctly, that the judiciary is the branch of government that is most conservative and the least likely to 'legislate their personal preferences.'

That's because judges, like legislators (and presidents), are influenced by popular and political culture; their views change along with the social mores of society at large. But, because of the reliance on past precedents, members of the judiciary are bound much more tightly to tradition than legislators. So while members of Congress have wide leeway to legislate according to their "personal preferences" -- and the preferences of their constituents that day -- the courts tend to lag behind popular opinion rather than getting out in front of it.

If you look hard at the things conservatives cite as examples of the courts forcing bitter medicine down Americans' throats, you'll find that those cases result from the other characteristic of the judiciary: it's the most consistent branch of government by far.

Gay marriage is a perfect example. The Krauthammers of the world will tell you that the Massachusetts Justices imposed their views on the state against the will of the public, because polls show clearly that (a small and declining) majority oppose same-sex marriage.

But the real story is that the courts decided, about twenty years after the rest of America (or at least 90 percent of it), that consenting adults shouldn't be prosecuted for things they do in their bedrooms. So, in Lawrence V. Texas, the Supreme overturned sodomy laws.

Then came the part about being consistent. The argument that had prevented gays from being granted the same rights as everyone else, historically, was that they were breaking the law when they hit the sack. Once gay and lesbian sex was decriminalized, the courts had no reason not to give them equal treatment under the law -- it's the whole 14th Amendment thing.

Krauthammer, I suspect, understands this. But who knows?

Before I wrap up this annoyingly long post, let's look at an unfortunate but revealing slip CK made down the home stretch:

The solution to judicial overreaching is to change the judiciary, not to undo every act of judicial arrogance with a policy-specific constitutional amendment. Where does it end? Yesterday it was school busing and abortion. Today it is flag burning and gay marriage.

Which one doesn't fit? Flag burning. There've been no recent court decisions that invited a rash of flag burning; In the 1930s, a former Republican presidential candidate wrote the majority decision in Stromberg V. California that gave First Amendment protection to "symbolic speech," and two decades ago the Court logically applied that to flag-burning.

By including that in his litany of today's "judicial arrogance," Krauthammer proves what many of us have long understood: "judicial activism" means any legal decision that pisses off conservatives, or any legal issue that they care to beat around election time.

*To be fair, The Hammer never says that gay marriage threatens straight couples' marriages. I gues he's got to leave something for the good folks at WorldNetDaily.

Joshua Holland is a staff writer at Alternet and a regular contributor to The Gadflyer.