While Nation Burns, Congress Fiddles With Marriage

With gas prices and the budget soaring, immigration bringing hundreds of thousands of people to the streets, the war in Iraq shaky and vital questions unanswered about the Administration's role in domestic surveillance, our Congress Thursday naturally focused on an issue that is more about symbolism than substance.

The Senate Judiciary Committe Thursday voted along party lines to send to the full Senate a constitutional amendment banning same-sex marriage. The move came a few days after a Georgia judge threw out a state initiative that banned same-sex unions because of a problem with the way the ballot was written.

The Committee's actions curiously wasn't big news either in Washington or in New York. My national edition of the New York Times had a wire report on page A21 and the Washington Post put it on page 3. That's because experienced political reporters and editors know that the amendment has no chance of passing with the two-thirds majority it needs in the Senate and dead-on-arrival legislation typically doesn't make good copy.

And even if the amendment somehow miraculously passed through Congress and the states it is not at all clear that such a change to the Constitution would survive a court challenge, even with a solidly conservative Supreme Court in charge. There is a reason that smart judges around the country have had problems with same-sex marriage bans. They are not always and on their face legal.

The Committee's work was big news here in Colorado, front page of both Denver dailies, but that's only because one of the amendment's sponsor's is Sen. Wayne Allard, a conservative Colorado pol who has made a career out of tilting at this particular windmill. And I presume it is big news with special-interest groups on the left and the right, who see in this issue the titanic struggle between good and evil. But that doesn't mean it deserves the honor.

One day we as a nation should continue our serious debate about same-sex marriage-- in our courts and in our legislatures. In fact, I cannot wait for the day when the United States Supreme Court issues a ruling on the matter because clearly that will be one of the landmark legal rulings of our time. But why would anyone think we need to talk about it now, with all the other horrible problems we face? Have you heard a lot recently from your friends and neighbors about how Congress needs to do something about same-sex marriage? Are people around you blaming it for the fact that gas costs $3/gallon or that are losing soldiers each month in Iraq? Of course not.

Congress should be spending every ounce of its time and energy giving us laws that make our lives better. It should be spending no time and energy on doomed gestures designed to appease one small group over another. With episodes like this, it's no wonder why Congress' appeal is near an all-time low, especially for the Republicans who control both houses.

By  |  May 19, 2006; 2:00 PM ET
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Andrew Cohen writes: "And even if the amendment somehow miraculously passed through Congress and the states it is not at all clear that such a change to the Constitution would survive a court challenge, even with a solidly conservative Supreme Court in charge."

What court in the United States could actually determine whether or not an amendment to the Constitution is constitutional? That strikes me as being the Platonic form of a non-justiciable question. Since by definition the Constitution is constitutional.

Posted by: Puzzled | May 19, 2006 08:56 PM

The idea that a piece of the constitution could itself be unconstitutional is bizarre and ridiculous.

I am not a fan of amending the constitution in this manner. I think it is a bad idea to write marriage laws into the constitution, and the federal government should not prevent democratic majorities within a particular state from adopting gay marriage for purposes of state law if they choose to do that.

But by definition, a part of the constitution cannot be unconstitutional.

That's why the constitution's requirement that each state receives the same number of senators, regardless of whether the state has 30 million people like California or 500,000 like Wyoming, does not violate the equal protection clause, even though similar state-law provisions giving each county the same number of state senators have been held to violate the equal protection clause, which guarantees the right of each vote to have the same weight.

Because one part of the constitution (the Article I apportionment provision) can't violate another (the equal protection clause), no matter how in tension they seem to be.

The above post demonstrates a basic ignorance about our constitutional system and the scope of judicial review.

Posted by: Hans Bader | May 20, 2006 01:49 PM

I have no argument with the idea that this is a frivolous piece of legislation right now, but I don't think we're ever going to have a "discussion" about this issue and decide it. It's clearly a thing our society is going to have to wrestle with for a long time. Opinions on the matter have been changing over the last few decades, and will continue to change.

The problem with it isn't just that this is a busy time. The problem is that there are always going to be better things for them to do. It's a stupid piece of legislation to begin with, and it's not going to pass. It's a waste of time and energy for that reason alone.

Posted by: Cujo359 | May 21, 2006 01:52 PM

What an odd world Andrew lives in. Apparently in his world Congress can repeal the law of supply and demand (the solution to high gas prices), while the Supreme Court can use the Constitution to find the Constitution unconstitutional.

Posted by: Thomas | May 23, 2006 12:47 AM

Mr. Cohen's piece seems based on the blatantly fallacious view that until all the major issues have been adequately addressed, then all the minor ones should be more or less ignored.

I think a moment's reflection will reveal to most people that this is simply not how the "real world" works. And for a variety of reasons.

For one, many of the major issues we face in life are intractable ones, with no clear solution. So unlesss we address non-major issues, not much will get done.

For another, who is to say which issues are major and which not?

We all have our subjective views on the relative importance of issues, and to implicitly take one's own view as gospel seems to me a thin facade for mere opinionating, pontificating and preachifying masquerading as objective truth.

Tsk tsk and tut tut, Mr. Cohen. Hey, what are you, a lawya or sumpin'?

(Yes, I may exaggerate a bit here, but I think my basic point is nevertheless valid.)

Posted by: Bill Burke | May 24, 2006 12:17 PM

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