Finally, there’s a voice in the discussion of gay marriage that doesn’t preach Scripture or the protection of moral values. As expected, it’s William F. Buckley, the vanguard of reason, and he injects a constitutional question into the debate: “gay marriage evangelists are ready to take advantage of that clause in the Constitution (the ‘full faith and credit’ clause) that requires individual states to respect legislation and judicial findings of other states in respect of citizens of those states. A couple who are [sic] married in the state of Virginia must be treated, when traveling in Wisconsin, as married.” The gay marriage advocates also have a safe haven in Article IV, which says, “Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.” Buckley balks at the use of this clause to force other states to acknowledge gay marriage: “The authority of Congress here is presumably evidentiary, not substantive,” meaning that past Supreme Court cases have established Congress’s breadth with regard to this clause; it is not specifically written into the Constitution. And this is where the problem is for him: the ability for state laws to be applied to other states via Congress is inferred, not explicit. This ability comes from the Supreme Court.

As expected, Buckley attacks the Supreme Court’s judicial activism, citing it as responsible for the “juggernaut determined to go all the way with the license given by the Supreme Court’s Lawrence decision.” The Lawrence decision (Lawrence v. Texas, 02-102) is the most recent ruling regarding gay rights, the Texas sodomy case that was decided just before the court went into its summer recess.

Buckley asks, “How does a self-governing republic proceed with a judiciary that has taken to writing basic laws?” This is a question that, if it were asked, should have been asked in 1801 with Marbury v. Madison. This case established the ability of the Supreme Court to override acts of other states or other branches of government if these acts conflict with the federal Constitution. This “writing basic laws” has been going on for two hundred years, and it is only when the ruling of the Supreme Court is in conflict with Buckley’s (and others’) opinions is judicial review a bad thing. The only answer to the Supreme Court’s usurpation of the legislature is an amendment to the constitution – in fact, “if the Supreme Court is going to continue to perform as a standing constitutional convention, then it becomes a conservative warrant to employ constitutional defenses.” Such an amendment to the constitution would, like the prohibition amendment, target one specific issue on behalf of a single group of people: “the necessary amendment need go no further – nor should go any further – than to limit the application of the full-faith-and-credit clause to exclude any requirement to abide by laws or judicial findings authorizing same-sex marriage.” These single-issue amendments (like the flag burning amendment) reek of a group attempting to exercise control of the country on behalf of an agenda it seeks to advance. The real issue here is not the misuse of the full-faith-and-credit clause, for if it were, the amendment Buckley suggests would close all the loopholes pertaining to that clause, like the “Reno divorces” that he cites (in the 1930s, people whose states didn’t permit divorce would go to Nevada – where divorce was legal – and get a divorce there. They would then return to their home states, which would be forced to acknowledge the divorce under the full-faith-and-credit clause, since it was made in a state where divorce was legal). Buckley seeks not to close this loophole altogether: just to close it for same-sex marriages. (And how do I know this, you ask? The sarcastic way in which Buckley refers to same-sex marriage, as well as his standing as a bastion of conservatism; conservatives don’t like the idea of same-sex marriage.)

The Supreme Court’s activism – at which Buckley and others balk – is what keeps the Constitution up-to-date. Supreme Court ruling are integral to ensuring that the framework written in 1787 is as relevant to us today as it was then. How so? Take “equal protection,” the key phrase of the Fourteenth Amendment, which the Supreme Court found as meaning that “separate but equal” is unconstitutional (Brown v. Board of Education) – albeit after an earlier court said it was okay (Plessy v. Ferguson) and that accused persons who cannot afford an attorney are entitled to one (Gideon v. Wainwright). Buckley and other conservatives also have a hard time dealing with Roe v. Wade, which pieced together several amendments into a patchwork version of a right to privacy (“privacy advocates are perfectly free to reason that somehow, implicit in the ‘spirit’ of the Constitution, there is something that permits the destruction of fetal life in deference to the private rights of women,” says Buckley).

While Buckley’s argument is more based in reason than arguments from, say, Pat Robertson, there is still something lacking: Buckley’s own refusal to acknowledge the equal protection clause of the Fourteenth Amendment. And let’s not forget the “due process” clause also contained within the Fourteenth Amendment: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” To deny to homosexuals the same legal protections afforded to heterosexuals through the vehicle of “marriage” is a clear abridgement of their privileges – and without due process of law.