Tuesday's Wall Street Journal has a powerful op-ed against the
Federal Marriage Amendment by esteemed University of Chicago law
professor Richard A. Epstein, titled "Live
and Let Live: A constitutional libertarian's case for same-sex
marriage" (it's online only for WSJ subscribers). Epstein
writes:
When President Bush, for example, talks about the need to "protect" the sanctity of marriage, his plea is a giant non sequitur because he does not explain what, precisely, he is protecting marriage against. No proponent of gay marriage want to ban traditional marriage, or to burden couples who want to marry with endless tests, taxes and delays. All gay-marriage advocates want to do is to enjoy the same rights of association that are held by other people.
But Epstein doesn't let leftist activists off the hook, either,
citing their clear double standards:
on associational freedoms, the American left has become far more statist in rejecting freedom of association claims in the Boy Scout and campaign finance cases. Its support for gay marriage, therefore, looks opportunistic because it refuses to apply the same standard of free assocaion to economic legislation for fear of what it will do to unions and their fiefdoms.
In its own way, the moral left is as authoritarian as the moral right. Judged against the left's own fractured standard, the conservative criticisms of judicial activism hit the mark. But the conservatives' plea for democratic federalism in defense of traditional values, and then for a constitutional amendment, is wholly misguided. Restore individual liberty to center state, and this state restriction on same-sex marriages fails to the ground with the same speed as the full panoply of employment regulations, and the extension of antidiscrimiation laws into ordinary social and religious affairs.
Read the whole thing if you can.
The Vote Approaches.
The Senate's Federal Marriage Amendment vote, expected on Wednesday, is being held so Republicans can identify and bludgeon Democrats who vote against a national ban on same-sex marriage (and presumably against civil unions, too, given the amendment's ambiguous language about "marriage or the incidents thereof"). But a silver lining is the opportunity it affords us to identify Republicans willing to buck their party's now-dominant theocratic wing, as well as those Democrats who take our money and votes, and give nothing but empty rhetoric in return.
The amendment won't come close to the two-thirds needed, but will it obtain over 50 votes in a Senate split nearly evenly between the parties? We'll soon see.
Update: The AP is reporting, "Kerry, Edwards May Not Vote on Marriage." I suspect enough pressure will be brought to bear that they show up; if it's not, and they don't, then the foot lickers over at the Human Rights Campaign should be run out of town on a rail.