Giuliani, McCain Consistent on Civil Unions

By Nathan Nelson Posted in 2008 — Comments (10) / Email this page » / Leave a comment »

I blogged previously about the New Hampshire legislature's decision to pass civil union legislation, which Gov. John Lynch (D-NH) has said that he will sign. New Hampshire is only the second state to enact civil unions without a judicial mandate requiring it to do so. Naturally, the 2008 presidential candidates have been weighing in on the decision, and two candidate responses have generated some controversy. Because Rudy Giuliani and John McCain have stated their opposition to the New Hampshire legislation, they are being derided in both the old and new media as flip-floppers, wafflers, etc.

This simply isn't true.

Read on...

While I disagree with their opinions on the New Hampshire legislation, their opinions are entirely consistent with past statements. Giuliani has said in the past that he supports civil unions, but he has also made clear that these should not be the equivalent of marriage. Rather, he favors civil unions that are similar to the domestic partnership benefits that he signed into law while he was mayor of New York. These domestic partnership benefits provided legal recognition of same-sex relationships without making them the equivalent of marriage by another name. The media are saying that Giuliani has flip-flopped on civil unions because they haven't taken the time to understand his position. Yes, he favored civil unions and still favors them; but he doesn't think they should be the equivalent of heterosexual marriage.

John McCain hasn't flip-flopped on this issue either. McCain has always said that because he is a federalist he supports the right of states to pass legislation recognizing same-sex relationships. That's why he opposes the Federal Marriage Amendment. He has also said that he believes marriage is a union between a man and a woman and ought to remain as such. His position on New Hampshire civil unions is entirely consistent with these beliefs. He has affirmed his commitment to federalism, but he also said this:

I am opposed to that legislation . . . If I were a citizen of New Hampshire, I would oppose it . . . Anything that impinges or impacts the sanctity of the marriage between men and women, I'm opposed to it.

The emphasis is my own. I think it's pretty clear what McCain is saying here. He's not reversing his federalist approach, he's not saying that states should no longer have the right to make these decisions. Rather, he's saying that he is personally opposed to the New Hampshire legislation. That doesn't mean he believes they shouldn't be able to do it, it simply means he believes they shouldn't do it. And why does he believe that? For the same reason that Rudy Giuliani does: because instead of offering mere legal recognition of same-sex relationships, the New Hampshire legislation offers the equivalent of marriage by a different name. McCain's position is still the same as it has always been: federalist, but personally opposed to same-sex marriage or its equivalent by a different name.

You know, Rudy Giuliani and John McCain certainly aren't my favorite candidates. I'm not shy about saying that if I had my druthers, Fred Thompson would be the next President of the United States. But even though I'm not a Giuliani or McCain supporter, I will vigorously defend their right to have an intelligent opinion that goes beyond a mere sound byte that media hacks can easily understand without doing any work to understand it. Over the past few years, the media has utterly deprived the American people of intelligent political debate, and this is how they've done it. Because they don't want to take the time or do the work to understand Giuliani's and McCain's opinions on this issue, they depict them as flip-floppers so that next time Giuliani and McCain will simply produce the right sound byte that will give the media the headlines they want.

Whether we agree or disagree with Giuliani's libertarian approach to same-sex relationships or McCain's federalist approach to them, we should be united in defending their right to have an opinion that is more than a sound byte. We should not fall into the media trap of assuming that they're flip-floppers. They're not. They're two candidates who have taken a nuanced approach to the legal recognition of same-sex relationships. Even if we don't agree with this nuance, we should be able to recognize that their opinions today don't differ significantly from their previous opinions. They may be many things, but on this issue they're not flip-floppers.

positions on civil unions by jamespolk

McCain's position is entierly consistent. He also favored Arizona's constitutional ban last year.

I think Rudy's position is a bit more sketchy. Maybe he doesn't favor all the provisions in the New Hampshire bill, just many/most of them. But he's said he supports civil unions and I think people are going to view his current position as vacillating.

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McCain by Aurelian

McCain's position is consistent, and I don't hold opposing the FMA against him IF he would truly put Scalias on the bench, and IF he would support some form of an Amendment whenever the Sup Court finally gets around to imposing gay marriage/civil unions on the entire nation.

However, it should be noted that the FMA would allow states to voluntarily enact civil unions, even the type being passed in NH that truly is gay marriage in all but name. What the FMA would not allow is for state or federal courts to impose civil unions or the like.

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Unnecessary by Nathan Nelson

The problem with the FMA is that it's unnecessary, and unnecessary constitutional amendments should never be passed. States can already prevent their courts from forcing them to enact civil unions/same-sex marriage. They can do this through constitutional amendment. The fact that some states (i.e., Massachusetts) can't get this done doesn't mean that it's impossible; it means that the Massachusetts legislature lacks the political will and perhaps the political capital to put such an amendment on the ballot. That could well mean that most citizens of Massachusetts support same-sex marriage there. Regardless, though, members of the Massachusetts legislature are the elected representatives of the people, and it's up to them whether or not to put this amendment on the Massachusetts ballot. If they don't, and if the people want it, they can always replace them come election day.

Unless and until the federal courts interfere in these decisions, there is absolutely no need for an amendment to the U.S. Constitution. So far the Supreme Court has declined to overturn the Defense of Marriage Act or any state bans on same-sex marriage, and until they do the amendment is unnecessary. States already have it within their power to overturn state court decisions, and whether or not they do so is up to them.

Regards,
Nate Nelson
Reality Mugged Me

Reply To This — User Info — #3

Federal court usurpation is inevitable by Aurelian

It is just a matter of time until an activist, leftwing federal appellate court strikes down state marriage laws in its jurisdiction, and imposes gay marriage/civil unions in their place. The Ninth is of course a good candidate for doing the dishonor. And with Anthony Kennedy likely holding the decisive vote on SCOTUS, then I think an imposition of at least civil unions is probable. If the Democrats win in 08, or if they filibuster any conservative put up by Bush or a Republican successor, then there is very little chance that gay marriage won't be imposed eventually.

When this happens, the stated positions of many Democrats and Republicans will be put to the test. Many of them publicly based their opposition to the FMA by saying they think it is a matter for the states to handle. If a federal court takes it away from the states, then they will have no excuse. Even better than a FMA to deal with a Sup Court imposition of gay marriage/civil unions would be a concerted effort by the states to refuse to obey such a decision, and a refusal by the President and Congress to enforce it. But that's a pipe dream. It will never happen, so a FMA will be the only remedy.

As to the matter of state courts; I don't mind admitting that I am somewhat contradictory here with regards to my support for states rights. What I support is the right of the people and their elected legislators to set marriage law, not state courts, so I wouldn't mind a FMA that strips state courts. I feel this way mainly because of how political dynamics play out in many states where the public most likely opposes gay marriage, but its not big enough of an issue to alter who most voters vote for. So in those states where it the amendment process must go through the state legislature before it goes to the people, it is likely that a state court imposition of gay marriage will go unchallenged, and the Democrats in the state legislature will not suffer because of how others issues and concerns trump this one.

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I disagree by Nathan Nelson

I disagree with your whole comment.

First, I don't think it's "inevitable" that we'll end up with same-sex marriage or its equivalent mandated by the federal courts. The Defense of Marriage Act was passed more than a decade ago and so far hasn't been overturned, nor have any state laws/constitutional amendments been overturned by the federal courts. To say that it's "inevitable" for it to happen is thus a bit of a stretch considering that if it were truly "inevitable," one would think it would have happened by now. I also disagree with you that Justice Kennedy will necessarily rule to overturn state bans on same-sex marriage, and I think we'll have to wait and see.

I also disagree with you in regard to the desirability of states and the federal executive branch defying the federal courts. The proper way to deal with a federal court decision that one doesn't like is to pass a constitutional amendment or appoint justices who will overturn the decision, not to simply ignore the ruling. Ignoring the federal courts would be a violation of the Constitution and would destroy the separation of powers. Is that what you're advocating?

Finally, in regard to state courts, there is a state level means to deal with them: state constitutional amendments. The federal government getting involved here is an unnecessary intrusion into state government and a violation of federalism.

Regards,
Nate Nelson
Reality Mugged Me

Reply To This — User Info — #5

Yes by zuiko

Unless and until the federal courts interfere in these decisions, there is absolutely no need for an amendment to the U.S. Constitution.

And until the horses escape from the barn there's no need to build a barn door.
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Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman

Reply To This — User Info — #6

McCain's position is entirely inconsistent by zuiko

If you look at his whole voting record, you'll notice that the only time Federalism matters to McCain is when he wants to play both sides of an issue, like he does here. His "Federalist" position is the same one you heard espoused by Democrats (who are also eager to duck this issue) and has the same amount of truth to it.

For example, where was his concern about Federalism when he voted for force 0.08BAC on the states, telling the state legislatures to pass legislation making that the law *or else*? Thats an actually objectionable usurpation of state power (as opposed to FMA) since it doesn't bother to go through the amendment process laid out by the founders. They just extort the states into doing it themselves. Why did he support the measure? Because he didn't see any need to be on both sides of that issue.
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Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman

Reply To This — User Info — #7

Giuliani and gay marriage by California Conservative

It is my understanding, based on some remarks made on liberal blogs, that Giuliani has supported gay marriage in the past.

Is this true or is it just typical liberal-blog exaggeration?

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It's not just liberal blogs by Adam C

Giuliani has never supported same-sex marriage. And until someone, anyone can show a bit of evidence (quote or video) to the contrary it would be good for people not to repeat the misrepresentation.

______________________________________
Bobby Jindal Saves Louisiana

Reply To This — User Info — #9

As far as I know, Giuliani by Nathan Nelson

As far as I know, Giuliani has never supported same-sex marriage - only civil unions, and only civil unions that are not the equivalent of marriage.

Regards,
Nate Nelson
Reality Mugged Me

Reply To This — User Info — #10

Redstate