DYCHE | Gay marriage: Who decides? - WDRB 41 Louisville News

DYCHE | Gay marriage: Who decides?

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By John David Dyche
WDRB Contributor

On September 9, 2001, this writer penned an op-ed piece for the Lexington Herald-Leader entitled "Conservatives Should Re-Evaluate Opposition to Same-Sex Marriage." It discussed Vermont's civil unions and then-Vice President Dick Cheney's pro-gay marriage statement during a debate at Centre College in Danville.

The column also quoted Jonathan Rauch, a respected gay and relatively conservative writer, for the proposition that same-sex marriage should be a state issue rather than a federal one in order to "avert culture wars, as the misguided nationalization of abortion law so unpleasantly and frequently reminds us."

In conclusion, the article predicted that Vermont's experience with civil unions would soon provide abundant evidence to conservatives that gay marriage deserved support. This position was not popular with some of this self-described conservative writer's readership.

On May 18, 2004, with Kentuckians preparing to vote on a state constitutional amendment defining marriage as between one man and one woman, your correspondent wrote a column for the Louisville Courier-Journal entitled "The Conservative Case for Gay Marriage." That composition praised Rauch's then-new book Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America.

It noted that Rauch, in what conservative columnist nonpareil George Will called "an exquisitely measured argument," favored adoption of gay marriage "the old fashioned way, by passing a bill in the legislature," not via court decisions. It also praised Rauch's case that same-sex marriage would be good for the institution of marriage as against a rapidly proliferating realm of less desirable arrangements.

In words once again not welcomed by many of this commonwealth's conservatives, the column urged every Kentuckian to read Rauch's book before voting on the constitutional amendment that fall. It also lamented that "some of the commonwealth's citizens seem to live beyond the reach of reason when it comes to this subject."

This writer voted against the Kentucky amendment in November 2004, but it passed anyway by an overwhelming margin of 1,222,125 to 417,097. This writer also, in his vocation as an attorney, argued on behalf of a transgendered client that the amendment violated the U.S. Constitution. That case was resolved, however, before the court adjudicated that argument. 

All this occurred, mind you, long before Democratic liberal icons like President Barack Obama, former President Bill Clinton, and presidential contender Hillary Clinton came out publicly for gay marriage. They now say they "evolved" on the issue or had some kind of epiphany, but everyone knows that they cynically put politics ahead of principle. 

Now a case contending that Kentucky's traditional marriage legal regime violates the federal Constitution is before the U.S. Supreme Court. When a lower federal court ruled Kentucky's marriage amendment unconstitutional, Governor Steve Beshear filed an appeal after his fellow Democrat, Attorney General Jack Conway, tearfully announced that he would not do so

Your correspondent then published an essay that both criticized the congenitally phony Conway's melodramatic, attention-seeking press conference and once again argued that the legislative process was the right way to implement gay marriage, which, like traditional marriage, was neither a constitutional nor a natural right. 

Some prominent and very vocal Kentucky supporters of judicially-imposed gay marriage blasted me as a "bigot" and a "homophobe." So much for having been in the conservative vanguard supporting gay marriage, and ahead of most liberal politicians! 

The Kentucky case is soon to be argued before the Supreme Court. The outcome appears foreordained given Justice Anthony Kennedy's majority opinion in the Windsor case, which held that the traditional definition of marriage in the federal Defense of Marriage Act (which Bill Clinton signed into law) was unconstitutional. 

Kennedy did not actually identify a constitutional basis for his meandering decision and was just plain wrong in its premise. He and the four liberal justices who joined him wildly overreached in stating that the only possible purpose of the statute's definition of marriage was "disparage and to injure" same-sex couples. 

The New York Times recently wrote that "standing up for traditional marriage has turned out to be too much for the elite bar" so "the arguments have been left to members of lower-profile firms." It does not matter because everyone at the high court understands that the case against a constitutional gay marriage right cannot be made any better than it was by Judge Jeffrey Sutton of the U.S. Sixth Circuit Court of Appeals in Cincinnati. 

Sutton's opinion is one of the best this attorney has ever read. One or more of the Supreme Court's conservatives should adopt it in its entirety. A former clerk for Justice Antonin Scalia, Sutton begins with a recognition that gay marriage appears inevitable. "This is a case about change -- and how best to handle it under the United States Constitution. From the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen." 

The question is, Sutton correctly recognized, "Who decides? Is this a matter that the National Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?" 

"In just eleven years, nineteen States and a conspicuous District, accounting for nearly 45 percent of the population, have exercised their sovereign powers to expand a definition of marriage that until recently was universally followed going back to the earliest days of human history," Sutton continued. "That is a difficult timeline to criticize as unworthy of further debate and voting." 

He concluded, "When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way." 

After his first supportive column appeared almost 14 years ago, this conservative remains in favor of gay marriage. He is also still for passing it through the political processes. That will produce broader societal acceptance instead of another culture war, and will ultimately carry the day even in Kentucky. 

A new poll says that a record high 61 percent of Americans support gay marriage, but the Supreme Court now has the final say. Five justices appear poised to immediately impose gay marriage nationwide and proclaim themselves heroes for doing so.

(John David Dyche is a Louisville attorney and a political commentator for WDRB.com. His e-mail is jddyche@yahoo.com. Follow him on Twitter @jddyche.)

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