Is President Bush kidding his conservative base on the “gay marriage” issue?  There is no question, if we stay on the road we are on, that the Supreme Court will decide whether Massachusetts can impose its law on the other states.  In outlawing Texas’ antisodomy law last June, the Court found that homosexuals are “free as adults to engage in their private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment” (Lawrence & Garner v. Texas).  So we can safely guess what lies at the end of the road: The Court will find that the other states must recognize Massachusetts’ “gay marriages.”

“Newlyweds” Chris Bianchi (29) and Dennis Skinner (27) of Rochester, New York, are already starting down the road that they hope leads to the Supreme Court.  They “married” in Massachusetts on May 17, when that state became the nation’s first to authorize same-sex marriage.  “We’re very excited,” they said.  They have now returned to New York and gone down to the Rochester City Hall to have their marriage recognized.  Their next step, if they are denied, will be to go to federal district court, where they will argue that the Full Faith and Credit Clause of the Constitution requires each state to accept “the public acts, Records, and Judicial Proceedings” of other states.  The Supreme Court, in all likelihood, will ultimately decide that language means the other states must follow Massachusetts law.

Can we get off this road?  Can we get this issue off the Supreme Court’s docket?  There are two ways to do it.  One way is impossible; the other one, easy.  Guess which one President Bush is pursuing?

The President, the same day Chris and Dennis exchanged their vows, spoke of the impossible one: his proposed constitutional amendment.  He said: “The sacred institution of marriage should not be redefined by a few activist judges.  All Americans have a right to be heard in this debate, I called on the Congress to pass, and to send to the states for ratification, an amendment to our Constitution defining and protecting marriage as a union of a man and a woman as husband and wife.  The need for that amendment is still urgent, and I repeat that call today.”

The President has to know, however, that his proposed amendment is not going anywhere—not this year, not ever.  Before an amendment can be sent to the states for ratification, it must pass two thirds of both houses of Congress.  The House of Representatives, whose members are elected every two years, will approve any popular proposed amendment.  One third of the Senate, by contrast, need not face the electors for six years and, thus, can defeat any proposed amendment with a minimal risk of political retribution.  The Senate, over recent years, has been the graveyard for proposed amendments favored by conservatives—term limits, school prayer, flag burning, busing, and a balanced budget.  “Gay marriage” is just one more to add to the pile.  So is President Bush just kidding around with his supporters?  Is this, in the late Senator Moynihan’s phrase, “Boob bait for the Bubbas?”

President Bush has an excellent option: The Constitution provides that a simple statute can take an issue off the Supreme Court’s docket and let the states decide it.  A simple statute passed by a simple majority in Congress and signed by the President can assure that each state can decide for itself without fear of being overridden by a judicially imposed uniform national rule—and that no state can decide for any other.  Congress can just reenact the Defense of Marriage Act restricting marriage to one man and one woman and add one sentence: “This law is not subject to review by any lower Federal Court or the U.S. Supreme Court.”  Congress, under Article III of our Constitution, controls the jurisdiction of the federal courts.  It can even abolish the lower federal courts if it chooses to.  It can also limit the Supreme Court to “cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party.”  If Congress acts, the “gay marriage” and “civil union” issues will be decided by the states.  Chris and Dennis will be “married” in Massachusetts and in any other state that wants to recognize their “marriage.”  That seems fair enough.

Maybe Congress would not pass the law—but President Bush could ask.  That does not seem too much effort to defend a sacred institution.  His supporters need to know that he is serious.