George W., Judicial Activist

The religious right made him do it.


Q: So if a state were voting on gay marriage, you would suggest to that state not to approve it?A: The state can do what they want to do. Don’t try to trap me in this state’s [rights] issue like you’re trying to get me into. … In my state of Texas, if we tried to have gay marriage, I would campaign against it.—Candidate George W. Bush, in a presidential debate moderated by Larry King in Columbia, S.C., Feb. 15, 2000

Peter Singer cites this exchange in his new book, The President of Good and Evil: The Ethics of George W. Bush, in order to demonstrate the hypocrisy of Bush’s subsequent support for a constitutional amendment banning gay marriage (which Bush formalized today). “No genuine advocate of small government would seek to take from the states the right to decide whether people of the same sex can marry,” Singer observes. Singer is an awkward ally for the gay rights movement, given his past support for interspecies sex (which prompted this dissent from Chatterbox and this somewhat more thoughtful reply from Slate’s William Saletan). But this time out, the Princeton bioethicist’s logic is unassailable. Bush is a fair-weather federalist.

In his remarks explaining his endorsement of the amendment, Bush also demonstrated that he’s blundered into a second type of hypocrisy as well, denouncing judicial activism while at the same time practicing it. On the one hand, Bush wants to curse the judiciary because it’s mainly judges who have pressed for recognition of gay civil unions and/or marriages. (Even in Vermont, the first state to enact a civil-union law, legislators didn’t act until a state Supreme Court ruling compelled them to.) Everything was fine until

some activist judges and local officials … made an aggressive attempt to redefine marriage. In Massachusetts, four judges on the highest court have indicated they will order the issuance of marriage licenses to applicants of the same gender in May of this year. … 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.

Hoping to prevent this, Congress had in 1996 passed the Defense of Marriage Act, written by the thrice-married Rep. Bob Barr, R-Ga., and signed cravenly into law by the adulterous president whom Barr was bent on destroying, Bill Clinton. The law defined marriage as “a legal union between one man and one woman as husband and wife” and said no state could be forced to grant legal recognition to a same-sex marriage in another state. Thirty-eight states passed similar laws. Bully for them, Bush says: “On a matter of such importance, the voice of the people must be heard. … My administration will vigorously defend this act of Congress.”

If “the voice of the people must be heard,” though, what else need Bush do? The state laws, and the question of whether or not state courts will uphold them, are none of Bush’s business, because he opposes Washington meddling in local affairs. At the federal level, Congress in its wisdom has spoken and enjoys Bush’s unqualified support.

But that isn’t good enough for the religious right, which is disaffected with the Bush administration and may conceivably support a third-party challenge to Bush’s presidency. So Bush must support the constitutional amendment, too.

He is doing this, Bush explains, because the Defense of Marriage Act, that righteous and democratic expression of the people’s will, is, um, unconstitutional:

The Constitution says that full faith and credit shall be given in each state to the public acts and records and judicial proceedings of every other state. Those who want to change the meaning of marriage will claim that this provision requires all states and cities to recognize same-sex marriages performed anywhere in America.

Note the grudging and exaggeratedly passive “will claim.” Hey, he’s saying, if it were up to me, I’d leave well enough alone. Unfortunately, those interfering judges just might agree that the Defense of Marriage Act really can’t be squared with the Constitution. And that leaves me no choice but to capitulate:

[T]here is no assurance that the Defense of Marriage Act will not, itself, be struck down by activist courts. In that event, every state would be forced to recognize any relationship that judges in Boston or officials in San Francisco choose to call a marriage. Furthermore, even if the Defense of Marriage Act is upheld, the law does not protect marriage within any state or city. For all these reasons, the Defense of Marriage requires a constitutional amendment.

Those damned activist judges! They’re so powerful that they’ve got me doing what they want before they even tell me to!

If Bush really believed marriage was something to be decided legislatively, he’d wait until a judge struck down the statute before waving the white flag on its constitutionality. And he’d certainly avoid dictating what “any state or city” should do. That’s what Barr, now retired from Congress, is doing. “The Constitution is no place for forcing social policy on states, especially in this case,” he’s said.

Instead, Bush is doing the courts’ work for them, declaring the Defense of Marriage Act unconstitutional while at the same time portraying himself as judicial activism’s victim. He’s like Cleavon Little in that scene from Blazing Saddles where he whips out his gun and takes himself hostage. In fact, it’s his fundamentalist supporters who’ve taken Bush hostage, and they couldn’t be less interested in helping Bush remain consistent about the proper role of the federal government. The only real belief animating this political discussion is the bigoted one that homosexuality is an abomination. President Bush may not subscribe to that belief, but he’s more than happy to cater to it.