Conservatives who get marriage wrong are, insofar as they do so, no more conservative than is a conservative who supports socialism. Traditional marriage has been the lynchpin of conservative social policy every bit as much as property rights and a free economy are the lynchpin of conservative economic policy.
What would we say to a so-called conservative who whole-heartedly supported Obama's economic policies? We would want to know on what grounds he can do so and still call himself a conservative.
Are the conservatives we now see running with their tails between their legs on the marriage issue to be trusted even on economic policy? What happens when the polls start going against conservatives on, say property rights? Will they bail on that issue too?
I have said it before: Marriage is such a central conservative issue that any conservative who caves on it cannot be trusted on any other issue.
After the Bourne v. Beshear decision striking down a part of Kentucky's Marriage Amendment, David Adams took to the blogosphere (and apparently the radio) to support Justice John Heyburn's decision to disenfranchise the over 1 million Kentucky voters who ratified Kentucky's Marriage Amendment in 2004 that defined marriage as between one man and one woman and allowed Kentucky to determine its own marriage policy by not recognizing marriages that didn't meet this definition performed in other states.
Adams, who has made a name in the state championing economic conservatism, gave up all critical judgment and accepted at face value Heyburn's tortured interpretation of the Constitution the judge employed in striking down the state's ability to refuse recognition to same-sex marriages performed in other states.
U.S. District Judge John Heyburn said that for Kentucky to refuse to recognize same sex marriages performed elsewhere violates the 14th Amendment of the U.S. Constitution. And it does. The 14th amendment forbids states from denying any person equal protection under its laws.But the whole question is whether defining marriage the way it has been defined throughout history constitutes a violation of equal protection. If the definition of marriage is between a man and a woman, as the testimony of history (and the majority who voted for the Marriage Amendment) would indicate, then same-sex couples are excluded, not by discrimination, but by definition. Homosexuals who want to marry are no more discriminated against by laws that employ a traditional definition of marriage than fathers are discriminated against by not being allowed to classify themselves as mothers, or brothers as sisters, or Whites as Blacks.
We have all kinds of definitions in the law and they all exclude someone from inclusion in some category. Are we going to find all of those laws in violation of the Constitution?
And, of course, if the logic of this decision is followed through on, then we will have to strick down laws against polygamy and incest. Is David Adams for that too?
He says, "Treating people unequally under the law also violates Section 2 of the Kentucky Constitution."
Adams is apparently not aware that that interpretation is based on a whole slough of judicial doctrines the legitimacy of which is doubtful.
"Supporting traditional marriage is still a right," he says, "it's just not something we can resolve with the force of law."
What does David think a legal decision is? A legal decision is nothing if not the exercise of the force of law. Oh, but that's a definition, isn't it? And we apparently don't like those. The question is not whether anyone can define marriage by the force of law, but who is going to do the defining: An unelected judge, or the people of a state?
Decisions like this basically take marriage policy out of the hands of voters and concentrates it in the hands of the least democratic branch of government: the judiciary. To support this exercise of judicial legerdemain is quite a position for someone to take who argues just the opposite on other issues.
I have one question for David Adams: We know what judge Heyburn's interpretation of Section 2 of the Constitution is: that it means that excluding same-sex marriage from the definition of marriage constitutes unequal treatment. What does he think would have been the interpretation of Section 2 by the people who actually wrote the Constitution?