More on Bainbridge on Marriage

Seems to be quite a discussion going on over at Andrew Sullivan after Stephen Bainbridge's post on same-sex marriage.

First, Liz Mair responds, and supports some of my contentions:

For as much as we may all agree that issues like whether or not to make gay marriage (or civil unions, or even legally-recognized and enforceable partnership agreements) available to gay couples would be best handled by the elected representatives of the people, the fact is that unlike the position before Roe, we have not seen much movement towards allowing gay partnerships in some form in the states, without judges leading (or "leading," depending on your view). Where states have wording in their constitution in, say, an equal protection clause to the effect that "All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness," like Article I, Paragraph 1 of the New Jersey Constitution, and a state via legislative inaction has maintained a ban on the constituent members of a formalized (gay) partnership having access to certain benefits that would automatically be accorded to those in a (heterosexual) marriage, it is fairly clear to me that the court remains the principal vehicle for resolving what on the face of it looks like a set-up that is probably unconstitutional (this is assuming, of course, that the electorate is not so outraged about inaction on the issue that they will vote on that single issue in the next election, to deliver a legislature that will resolve it).

Eric Kleeman has some thoughts on an appropriate federal stance. I'm not sure they're quite on point, simply because of the Fourteenth Amendment and its effects on states' ability to ignore rights granted under the federal constitution, which arguably does permit same-sex marriage under any number of clauses.

Bruce Bartlett is stuck on terminology, willing to grant the churches' appropriation of the term "marriage" (which I am not). He seems to be blind to the social and cultural implications of the word, which are a key factor, as far as I'm concerned, in the desirability of being married over being "civil unioned" (or whatever you want to call it).

It seems on the whole that the arguments keep circling around the issue, although Mair's post is very good.