COLUMN -- Gay marriage is a 'deeply conservative idea'

Wednesday, June 8, 2005


University of Minnesota law professor Dale Carpenter boasts a strong conservative profile. He studied law at the University of Chicago. He clerked for Edith H. Jones, a Reagan appointee to the 5th Circuit Court of Appeals. He believes in "original meaning" constitutional interpretation and that law is "based on morality." He does not hold with constitutional relativism or judicial activism.

Oh, yeah: He also supports same-sex marriage. With good reason. Same-sex marriage is, Carpenter believes, a "deeply conservative idea."

"The problem is conservatives may be the last people in the world to realize it," he said. "Gay marriage advocates have to do a better job explaining how gay marriage is a deeply conservative cause. And we have to do that by appealing to our fellow citizens, not by running to the courts."

In a wide-ranging interview, Carpenter built an intriguing and provocative case that political conservatives not only ought to oppose the proposed Minnesota Marriage Amendment, conservatives ought to support same-sex marriage. In fact, conservatives ought to encourage it.

"There are two separate issues here," Carpenter said. "One is a matter of what the courts should do. Should the courts be involved in basically forcing gay marriage on an unwilling population? My answer to that is no.

"The second question is a policy question. Is gay marriage radical and therefore a dangerous change in marriage? My answer to that is also no."

Carpenter notes that state defense of marriage amendments, including Minnesota's, use a "bait and switch" strategy. Their stated intent is stopping judicial activism; their application is much broader.

"Even the most narrow amendments do more than just foreclose court involvement," Carpenter said. "All of them say no gay marriage, even if the Legislature were to decide differently."

It's Carpenter's position that an amendment stating "the courts shall have no jurisdiction over decisions of the Legislature regarding the gender requirements of marriage" (or words to that effect) would protect against judicial activism. That approach still leaves the Legislature, elected by the people, free to decide the gay marriage issue as a legislative issue, not a constitutional issue.

It is as unconservative a notion to legislate in the Constitution as it is to legislate from the bench.

On the subject of gay marriage itself, Carpenter believes that whatever view one takes of homosexuality, a political conservative ought to support gay marriage.
"Given that there are homosexuals in the United States, and they are not going to be eliminated by any means acceptable to the American people, what is to be done with them?" he asks.

"Are we to shut them out of traditional institutions like marriage? To marginalize them to where they become hostile to traditional values? What would conservative social theory predict would happen to a group of people cut off from the stabilizing influence of marriage?

"I think it would say a lot. All kinds of pathologies — drug and alcohol abuse, rampant promiscuity, more depression, less productivity, more dependence on government and so on. Marriage has a very powerful positive affect."

Carpenter understands radical leftist groups, out of their existing antipathy to traditional institutions, wanting to keep gays out of the mainstream. But he can't understand why conservatives would take that position.

"Why would the right act to keep this group of people on the margins of society, undermining and criticizing traditional institutions, rather than bringing them in? To the extent that we bring more people in and say marriage is really for you as well — and we expect it of you — we actually serve the cause of redeveloping a culture of commitment."

Even accepting the worst-case viewpoint that gay marriage is an abomination in the eyes of God, the conservative political argument prevails. Extending the protections and stability of marriage to gays — not all at once, but in increments — is more beneficial than marginalizing gay families and their children and consequently encouraging the pathologies that marriage is rightly praised for preventing.

Gays — conservative gays — do not want to redefine marriage. They want to participate in it. Conservatives ought to be encouraging them to do so with the same vigor and for the same reasons we encourage our children "to settle down and raise a family." It's good for individuals. It's good for society.

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The complete transcript of my interview with Dale Carpenter can be found here.

An opposing view from a reader -- Charles Darrell of Minnesota for Marriage -- can be found here.

A response to Katherine Kersten's column in the Star Tribune, which supported the Minnesota Marriage Amendment, can be found here. Readers on both sides of the issue provide valuable insights in the comments to this post. The discussion is civil; thoughts on both sides are well-reasoned.

All these posts contain links to additional references.