The radical nature of the ongoing confrontation over homosexual marriage is obscured by the subject matter. Gay couples are common in large, urban areas, so their public affection hardly causes a ripple in many parts of America, but other parts of the country are scandalized.
The debate over homosexuality in general, and gay marriage in particular, is also difficult to separate from the debate over religion in public life. There is such intense anger on both sides of the issue that debates flare suddenly into shouting matches.
The issue is an albatross for John Kerry because large majorities of likely voters endorse the idea of reserving marriage to its role throughout recorded history: an institution between man and woman.
But put aside the politics, and put aside the particulars of the debate. The real issue here is the rule of law and the precedent that the mayor of San Francisco and other small-time, small-minded publicity addicts are setting.
No matter what your particular cause, you have to be taking notes right now. Whether it is Second Amendment absolutism, or a certain view that the First Amendment’s Free Exercise Clause allows for prayer in school, a passion for a particular issue burns in many hearts across America.
Previous to February 2004, however, enthusiasts of minority views and radical views knew that the law would not allow them to indulge their own concepts of how the world ought to be. The mayor of Small Town, Anywhere, couldn’t start issuing permits for machine guns even if he believed that such permits were constitutionally protected, and the prayer warrior who happened to be the county administrator in Middle Sized Burg, America, couldn’t take his view of the Constitution into a classroom and begin leading worship with the Lord’s Prayer followed by a few of the great old hymns.
A city council in California couldn’t decide that the Endangered Species Act was an encroachment on 10th Amendment rights and start bulldozing spotted owl habitat for a new park.
A mayor in Texas couldn’t decide to widen the local river by 10 feet without a permit from the Army Corps of Engineers in order to hasten the arrival of a new river-walk feature to generate downtown business.
The mayor of Las Vegas can’t exempt the new casino’s ownership from the collective bargaining laws of America, and the mayor of Indianapolis can’t simply say gambling is a good thing and license a casino operator to open for business.
A mayor in Oregon cannot issue driving licenses to illegal aliens in that state because she thinks they are hard pressed to find work without them.
A mayor in Des Moines cannot order the sheriff to open the jail and free all the prisoners because his reading of the Eighth Amendment has led him to conclude that conditions in the local lockdown constitute “cruel and unusual” punishment.
The mayor of Atlanta cannot pardon those on death row in Georgia, and the mayor of Washington, D.C., cannot declare the airspace over the White House open for small aircraft traffic.
You get the picture.
Civil society depends upon the actions of local elected officials and state elected officials and federal officials obeying the law as it is widely understood and not abandoning the law when their personal view of how it ought to be is not how it is.
The mayor of San Francisco has done a terrible thing by popularizing the idea that conscience should trump law. There is a tradition of brave souls who went to jail for their beliefs in order to draw attention to their cause. But San Francisco has no part in that tradition, and there is no courage or honor in a simple exercise of will.
The paralysis which has greeted the one-man rule in San Francisco is astonishing, and long after the issue of gay marriage is settled by application of the Defense Of Marriage Act, an amendment to the Constitution, or by the successful imposition of the new cultural norm by judicial diktat, the failure to oppose simple prerogative will carry a heavy cost.
Societies cannot endure without agreed upon rules of law and their uniform application. No serious person believes that the charade in San Francisco is legal, but neither has it been stopped by those charged with upholding the laws of the state.
The folks at the extreme of every issue have noticed: The best offense is aggressive, unilateral action – even if it involves lawbreaking. The best defense will be the videotape from San Francisco.