Richard Cohen, one of the Washington Post’s “liberals” pens a column on gay marriage: he’s for it. In arguing for it, however, he makes the following puzzling distinction:

>Gay marriage, like abortion, is a highly emotional issue and, at the moment, commands nowhere near overwhelming support. Depending on how the question is asked, and the polling organization itself, anywhere from 40 to nearly 60 percent of Americans oppose same-sex marriage. If the latter figure is accurate, permitting same-sex marriage by judicial fiat would produce yet another protracted fight over yet another social issue. Roe has been bad enough, thank you.

Then he says,

>Yet the case for same-sex marriage is so much clearer and easier to make than the complexities that produced the tortured reasoning of Roe . It is based primarily on the easily understood and widely accepted words of the Declaration of Independence: “life, liberty and the pursuit of happiness .” Since none of the counterarguments can prove any damage at all to society, the New York state high court missed a chance to further an education process and, justly, grant to homosexuals and lesbians the benefits of marriage so casually granted to heterosexuals. Way before getting to 316, it’s clear one of the benefits is as American as apple pie: the pursuit of happiness itself.

It’s hard to appreciate Cohen’s distinction between these two cases: abortion and gay marriage raise fundamental constitutional questions (especially when people organize to deny access to them). It’s obvious to many that gay marriage and the right to abortion follow from simple constitutional principles (and so are the proper objects of judicial review–what he calls “judicial fiat”).

But it’s not obvious to some disproportionately vocal and (at times) violent individuals. They think such things do not follow easily from the foundational principles of the constitution. While they are likely wrong, Cohen ought to show them how they are wrong. Merely claiming that gay marriage, but not (puzzlingly) reproductive rights, follow from the “pursuit of happiness” begs the question in the most textbook fashion: he asserts without argument what he needs to demonstrate.

One thought on “Happiness”

  1. i think the difference cohen has (mis) identified between Roe and the gay marriage debacle is that Roe was handled improperly in that it was handled by the judicial branch at all. essentially, cohen is urging the judicial to adpot a hands-off approach to the gay marriage issue that they did not adopt for Roe. he’s, in a way, resurrecting a rather arcane arguement for state’s rights, for a sort of pseudo-autonomy for state legislatures. not that there’s anything wrong with that, but he’s muddld the waters by making this a constitutional argument, which happens to be the very realm of the judicial branch’s jurisdiction. so he want’s to have it both ways, which he can’t.

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