The New York Times today has a story on certain relatively prominent Republicans who are coming out in favor of same-sex marriage. According to the article there is an amicus curiae brief in the works calling on the Supreme Court to find a constitutional right to same-sex marriage, and around 75 Republican officials of various kinds have signed on. (An amicus brief represents the views of people who are not actual parties to the case but who have some public policy interest in it.) The story does not name all of the Republican signers, and no doubt many of them are people we have never heard of. But some of the ones named are pretty prominent: Jon Huntsman, Meg Whitman, David Stockman. And of course one of the lead attornies in this business is Ted Olson, a long-time and well-respected Republican constitutional lawyer.
What are we to make of this?
In the first place, it is worth observing that the article is a piece of political propaganda — and this despite the fact that every word is, I am sure, quite true. If it is true, why is it propaganda? Because it is one-sided. The article suggests that this development portends a “civil war” in the Republican Party on the question of same-sex marriage. Maybe it does and maybe it doesn’t, but anybody who is informed about American politics knows that there are core Democratic Party constituencies that are not at all supportive of same-sex marriage. But I don’t predict any Times articles on this phenomenon anytime soon, let alone ones predicting the possibility of civil war among Democrats.
In the second place, I think these Republican supporters of same-sex marriage are misleading themselves. At one point one of them — Ken Mehlman, a former Chairman of the Republican National Committee — contends that the point of the brief is to tell the justices that it is consistent with conservative political and legal philosophy to declare a constitutional right to same-sex marriage. I don’t see how such a move would be consistent with either political or legal conservatism. As has been pointed out many, many times, extension of marriage to same-sex couples is inseparable from a redefinition of marriage, or a reconceptualization of everything that it is. But if you can redefine marriage, you can redefine anything, and the impulse to redefine fundamental social institutions is anything but conservative.
Legally the problems are, if possible, even more glaring. Even if one thinks that same-sex marriage is a good idea, there is no way to claim that there is a constitutional right to it. Or, at least, there is no way to claim this while also maintaining that the Constitution has a fixed and discernible meaning that is to be binding on judges and on the country. The Constitution, on its face, says nothing about a right to same-sex marriage. It in no way constrains the power of the people to define marriage as they see fit. If it can be made to say otherwise, it can be made to say anything. The proponents of same-sex marriage rely on the Equal Protection Clause of the 14th Amendment, which was proposed and ratified with the immediate objective of protecting the newly freed slaves from state-sponsored discrimination. If the Equal Protection Clause can be made to mean that it is unconstitutional discrimination to prefer a definition of marriage that some people think is too narrow, then it can be used by judges to strike down any law that makes any distinctions between any persons for any reason. This is not to say that the Court would follow up a ruling in favor of same-sex marriage by striking down all such laws. It certainly would not. But by opening the door to it in principle, and then by not going forward, it will ensure that the ”principle” it has established will simply be used arbitrarily.
A ruling in favor of a constitutional right to same-sex marriage would be nothing but judge-made constitutionalism and therefore incompatible with the rule of law. There is nothing there a conservative should want to support.