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Another Source of Cyclical Frustration

Andrew Sullivan's Web site is another source of information and opinion that seems to find ways to turn me away each time I begin to find myself gravitating toward it again. For the most part, I find Mr. Sullivan very much worth reading, but on occasion, he takes positions and makes arguments that deeply disappoint me given the high esteem in which I hold him — in which much of the conservative opinion world holds him.

This time around, the problem comes up — as it frequently does — with gay marriage and Sullivan's periodic bouts with Stanley Kurtz. Here's the offending passage from Sullivan's latest post, entitled "Kurtz's Bait and Switch," on the topic:

In his first piece, Kurtz propagated the idea that the Full Faith and Credit Clause will mandate such a nationalization. Presented with legal evidence that shows that that clause has never succeeded in nationalizing one state's marriages and that it is extremely unlikely to be successful in doing so in the future, he has now wisely reverted to another argument. This time, he argues that same-sex marriage may one day be nationalized the way inter-racial marriage eventually was - not by full faith and credit but by an equal protection argument. In fact, he now believes that equal protection arguments are far more likely to nationalize same-sex marriage than Full Faith and Credit. Well, I'm glad he's acknowledged that the scare tactics by the far right on Full Faith and Credit are just that. That was the point of my post earlier this week; and he has essentially conceded the point.

For some reason, the words "first piece" link to Kurtz's third piece from this round of debate. In the second installment, which Kurtz notes in the third, Kurtz refutes the point that Sullivan informs his readers has been "essentially conceded." Sullivan further misleads readers by suggesting that Kurtz has "reverted" to a different argument, having been defeated on one. Here's the relevant paragraph from Kurtz's first piece:

Yet each of these mechanisms is vulnerable to challenge on constitutional, legal, or political grounds. The Full Faith and Credit Clause of the Constitution compels each state to recognize the public acts of all the others. While the clause does grant Congress the right to manage such recognition (thus apparently validating the Defense of Marriage Act — DOMA), there is no doubt that DOMA will be challenged on Full Faith and Credit grounds as soon as we have gay marriage in a single state. Powerful constitutional challenges to DOMA on Equal Protection Clause grounds will also be filed just as soon as gay marriage is legalized in a single state. Attempts to prevent recognition of gay marriage on grounds that a state has a right to declare a "public policy exception" are also highly vulnerable to legal and political pressure.

Not only does Kurtz include a reference to the "Equal Protection Clause," but he later highlights aspects of the Massachusetts case in question that are specifically designed to facilitate this route.

So, having corralled the discussion into the area most favorable to his opinion, Sullivan thereafter moves into what, given his intelligence, can only be disingenuousness with his subsequent post, "Equal Protection." The logical construction of this piece of the argument is, essentially, as follows. After saying "I certainly hope so." to the possibility that the Supreme Court will eventually rule gay marriage a civil right, Sullivan declares that the court will not take up ruling on gay marriage for a long time. After all, "it took well over a century for the Court to rule on inter-racial marriages." In the intervening years, the nation will undergo the "slow federal process" by which, state by state, the people will see the "profound strengthen[ing]" of marriage in the trend-setting states. Then the coup de grace:

I want that slow federal process to take place. Kurtz wants to pre-empt it now by writing an anti-gay plank into the Constitution of the United States. He wants to prevent the process even starting. I think that's unconservative, anti-federal, extremist and deeply divisive. Which is as good a description of some elements of the far right (and the far left) in this country as you can find.

Consider the radically changed temper that exploded into the national subconscious around the same time that the Supreme Court struck down miscegenation in the 15 states that still had it (1967); such movements move much more quickly now. Furthermore, it seems reasonably inferable that Sullivan — and many, many others — intend to push for the Supreme Court's involvement (remember that "hope so") as early as possible.

Ultimately, Sullivan gives every indication of objecting to Kurtz's position because it switches the incline of the playing field. Without a marriage amendment defining the relationship as between one man and one woman, the gay marriage proponents can push for it in each state — largely by means of the courtroom rather than the debating floor, as looks likely in Massachusetts's case (and as Sullivan suggests it ought to be). They'll win some and lose some, all the while pushing those they lose toward the Supreme Court.

Sullivan's position, in my opinion, is truly unconservative because it is undemocratic and deceitful. And it is far more divisive to force a controversial issue through the courts than to allow a willing public, through its representatives, to decide whether to provide a varyingly parallel arrangement to marriage for homosexuals until such time as the public is united enough to re-amend.

Posted by Justin Katz @ 10:02 PM EST