Gay rights advocates pushing for officially recognized same-sex unions across the country might have been better served politically had they left the wordmarriageout of their fight altogether, one West Virginia University law professor says.
Meanwhile, a WVU political scientist says President Bush’s support for a constitutional amendment banning gay marriages is election-year political rhetoric that will not likely change voters’minds on the issue or their choice for president.
James McLaughlin, a constitutional law authority and associate dean of the WVU College of Law, said Newton’s third law of motionthat every action has an equal and opposite reactionapplies to social movements as well.
Don’t get me wrong, I’m very sympathetic to the cause,McLaughlin said.It’s just that in a democracy, you can’t push too hard against prevailing attitudes. You’ll get a reaction.
Chain reaction is more like it, McLaughlin said. When the Massachusetts high court voted to allow marriage of gay and lesbian couples, the court, in effect, was overruling the spirit of the 1996 federal Defense of Marriage Act, which defines marriage, legally, as a union between a man and woman.
And while the ruling would only apply to Massachusetts, the city of San Francisco has reacted by performing more than 3,000 gay marriages over the past few weeks. Americans across the country, meanwhile, reacted negatively. Those surveyed in a recent Gallup Poll commissioned by CNN and _ USA TODAY _ opposed same-sex marriages by a 2-1 margin.
Bush, in turn, reacted Tuesday (Feb. 24) by calling for a constitutional amendment to block gay marriage that McLaughlin said is only going to muddle more an already convoluted issue.
In his 35 years as a professor at WVU , McLaughlin said he’s seen the student body come around more and more to officially recognize and acknowledge openly gay students on campus. The shift has been gradual, he said, as society in general has grown to accept alternate lifestyles.
That same gradual awakening needs to commence in courtrooms and at city hall, he said. In the next 30 or 40 years, gay marriages probably will be mainstream, he said, but not with such high-profile legal wranglingespecially with a presidential election rapidly approaching.
A lot of the conflict could have been bypassed, McLaughlin said, by avoiding use of the wordmarriage.
They (advocates) should have worked to get more laws passed recognizing �€~registered partners,’McLaughlin said.It doesn’t mean they shouldn’t have a ceremony. They just aren’t going to get a license. They get some of the rights and benefits of married couples. They just don’t get to use the word �€~marriage’officially.
A constitutional amendment, McLaughlin said, could spell disasterand not just for gay rights.
It depends on how it’s worded,he said.If it OKs other kinds of same-sex unions, perhaps the courts will allow some rights to gay couples. If the law is worded broadly to say same-sex couples can have no rights of marriage, or of married couples, then it will be a terrible setback to the gay community and to human rights in general.
In an advisory opinion to the Massachusetts state legislature, the Massachusetts high court also rejected theseparate but equalpremise mapped out by McLaughlinthat’s the underlying proposed legislation that would allow gay couples to entercivil unionswith all the benefits of a nuptial union while continuing the ban on same-sexmarriage.
This is a horrible mistake by the Massachusetts Court,McLaughlin said.
Meanwhile, Richard Brisbin, an associate professor of political science, said Bush’s backing of a constitutional amendment to ban same-sex marriage is more a political ploy to rally his supporters as the presidential race heats up.
It’s the president making a statement, largely for purposes other than effecting the law,said Brisbin, whose teaching and research areas include the Constitution and civil liberties.It’s just the president attempting to influence public opinion after public opinion has already been formed. I don’t think there are any people wavering on the issue.
As far as the likelihood of a constitutional amendment, that’s hard to predict,he added.An amendment requires a two-thirds vote in Congress, and we don’t know the exact shape an amendment would take. Its specific language might affect how senators could vote. It also requires passage by three-fourths of the state legislatures, and we don’t know what their makeup will be after November.
The president’s stance is unlikely to influence voters, who will base their decisions more on how well they think Bush is handling the economy, the war in Iraq and the fight against terrorism, Brisbin said.
I don’t think Bush’s support of the amendment will waver the basic allegiance of people to their party or sentiments about Bush,he added.This election is going to be a referendum on George Bush and his allies, not a referendum on gay marriage.
The move is basicallypolitical hyperbolebecause the president plays no role in amending the Constitution and the status of same-sex marriage remains unclear despite recent court and legislative actions, Brisbin said.
The Massachusetts court ruling applies only to Massachusetts and doesn’t take effect until May, the Defense of Marriage Act only restricts same-sex couples from federal benefits, and other state laws defining marriage as a union between a man and woman may be challenged in court, he said.
McLaughlin and Brisbin are available to talk to the media about the issue. McLaughlin can be reached at 293-6822, and Brisbin’s phone number is 293-3811 ext. 5296.