The fight is on. The Massachusetts Supreme Judicial Court and San Francisco Mayor Gavin Newsom have placed the issue before the nation. With President Bush’s endorsement of the FMA, the battle has been joined. The question before is no longer, “should we fight for a Marriage Amendment?” Rather, it becomes, “how do we pass it?”

In order to pass the Amendment will require the assent of 2/3’s of the Congress and thirty-eight states. The struggle will be difficult on both fronts, as it seems possible that the Democrats might seek to line up against the amendment nearly unanimously. But that is far from certain. Dogmatic opposition to the FMA could potentially hurt a number of Congressional Democrats who represent socially conservative states.

The following incumbent Democratic Senators voted for the Defense of Marriage Act in 1996: Joe Biden of Delaware, Jeff Bingaman of New Mexico, John Breaux of Louisiana, Robert Byrd of West Virginia, Kent Conrad of North Dakota, Tom Daschle of South Dakota, Christopher Dodd of Connecticut, Byron Dorgan of North Dakota, Bob Graham of Florida, Tom Harkin of Iowa, Herb Kohl of Wisconsin, Frank Lautenberg of New Jersey, Patrick Leahy of Vermont, Carl Levin of Michigan, Joe Lieberman of Connecticut, Barbara Mikulski of Maryland, Harry Reid of Nevada, Jay Rockefeller of West Virginia, and Paul Sarbanes of Maryland.

Now, obviously, not all of these will now vote for the FMA. But, certainly, a number of them will. Assuming that fifty of the fifty-two Senate Republicans vote for the Amendment (I’m guessing that Lincoln Chafee and at least one other dissident will vote against) then the Republicans need to pick up the votes of seventeen Democrats. Zell Miller of Georgia can, I think, be counted as a given. The same can probably be said of the fairly conservative John Breaux. Can an additional fifteen votes be squeezed from the Senate Democrats? I think so. After all, thirty-two voted for the Defense of Marriage Act, and not a few are up for re-election this year.

The harder part comes in the House of Representatives, where the Republicans would need two hundred and eighty-seven votes to pass an Amendment. This would probably require the defection of something like eighty Democrats. Given the huge number of safe districts created in recent years along with the increasingly strident leftism of the House Democrats, I’d suggest that it will be difficult to pick up more than forty Democratic votes (and you’d probably lose a number of libertarian-minded Republicans too). The House is the second most difficult part.

Most problematic would be securing the ratification of the amendment by the states. While it is true that, at the present time, thirty-eight states have their own Defense of Marriage acts, getting thirty-eight states to ratify a Constitutional Amendment will be another thing altogether. I think it is safe to assume that such an Amendment will not be ratified by a number of states (California, Hawaii, Vermont, Massachusetts, New York, New Jersey, and Illinois come to mind). In a number of other states, ratification could be blocked by determined Democrats for long enough that gay marriage becomes a fact on the ground.

This assessment sounds gloomy, I know. If we cannot pass an Amendment, why invest political capital in fighting for it? The answer is simple: we may not be able to pass an amendment this year, but that says nothing about what will happen the year after that.

Marriage foes are gleeful about polls that show the public to be evenly divided over the FMA. One recent poll, which they have heavily cited, shows the public against it by seven points. What they miss (or deliberately omit) is the rest of the story.

When asked if they favor a Constitutional Amendment which bans marriage in all states, people are opposed 41-48. When asked their opinion of a law which would allow gay marriage in their own state, the same poll sample showed that people were opposed 30-64.

This support was across the board: in the South 70% were opposed, in the West 63%, in the Mid-West 61% and in the Northeast 60% were opposed. Support for gay marriage was highest among people aged 18-29 at 41%. Given that people in these age groups vote at a lower rate than other groups and that this was a poll of “all adults” instead of registered or likely voters, one can infer that, among voters, roughly 65-70% of voters nationally are opposed to gay marriage in their own state.

Now, what can we draw from this? The first is that support for the Amendment is going to go up as people learn more about it. This same trend has been seen in both Canada and Massachusetts. After moves were made to legalize gay marriage, support in both areas fell by nearly ten points (resulting, in both cases, in a majority narrowly opposed). Second, people don’t yet understand the need for an amendment. Many oppose the Amendment because they feel that, while they don’t wish to see gay marriage in Indiana, they see no reason to deny it to the people of Massachusetts if they wish it. When the learn how, because of the full faith and credit clause, the legalization of gay marriage in Massachusetts (or California) will lead to the legalization of gay marriage in their home state, the support numbers for the amendment will move noticeably upwards.

This is a good debate for Republicans and a bad debate for Democrats. 83% of Republicans oppose the idea of bringing gay marriage into their own state. The same holds true of 55% of Democrats. Now, naturally, not all of the 12% of Republicans who support gay marriage or the 55% of Democrats who oppose it are going to vote on the issue. But some will. Which side is likely to pick up more votes as a result? With numbers like that it is difficult not to conclude that for every Andrew Sullivan lost to the GOP there will be several Democratic crossovers.

In particular this is a good debate for Republicans because the position of leading Democrats on the issue will not stand up to scrutiny. John Kerry voted against the Defense of Marriage Act, but now claims to be opposed to gay marriage. However, he’s opposed to the FMA because he claims that it’s “divisive.” In short, his position can be summed up as such “I’m opposed to gay marriage, but I’m also bitterly opposed to doing anything to stop it.” This is the sort of cynical political argument which one can use to gloss over an issue, but which will not hold up to debate. One can be for gay marriage or against it, but not both at the same time.

By forcing the issue, the brash and young Mayor Newsom has played directly into Republican hands. The previous Democratic plan for the legalization of gay marriage has been shot to hell by his thrusting of the issue into the spotlight. Until a few weeks ago, the Democrats planned to insist that they opposed gay marriage, that the Defense of Marriage Act already banned it, and that any efforts to pass a Constitutional Amendment to stop it were based upon paranoid fears inflamed by “homophobic” bigotry. Then, when one state (likely Massachusetts it seemed) legalized gay marriage and that legalization was followed up by Federal Court decisions legalizing the practice in all states (using both the Full Faith and Credit Clause and the decision in Lawrence v. Texas), they would treat the matter as a fait accompli. Tens of thousands of gay couples across the country would rapidly marry, and Republicans would be called upon to “move on” and “accept the will of the court”. It probably would have worked. Efforts would have then been made to bring in the FMA, but they would have been rendered futile by the reality on the ground. The media would fill with stories of sympathetic homosexuals who would be “divorced” by the passage of the Amendment.

So, how do we pass it? There are two roads. It may be possible to, this very year, have an amendment passed and ratified by simply taking the spirit of the FMA and inserting it into the Constitution. “Nothing in this Constitution shall require any state to recognize any marriage conducted in any other state that is not between a man and a woman nor shall this Constitution or any state constitution be interpreted to require marriages between persons of the same sex.” Such an Amendment would, I think, be fairly popular and passable. However, it is possible that Congressional die-hards might even stall an amendment so-worded. Still, it’s probably worth a try. The end result would probably be that a few liberal states would legalize some form of gay marriage (and, perhaps, recognize each other’s gay marriages) while others would refuse to recognize them. States, if they so desired, could pass laws authorizing gay marriage: but no court could force them to do so.

Naturally, I’d prefer to see a different scenario unfold. Put forward the original amendment- let the Democrats defeat it or hold it up. Then campaign on it: hard. This is the wedge issue to end all wedge issues. Sure, you’ll lose a few Republican votes, but the same issue can be used to slice and dice the Democratic Party. In many states, incumbent Democrats will either have to follow the party line or face angry voters. This is the year to do it, by 2006 or 2008 the initial passions will have calmed.

The issue can even be extended into the states, with campaigns for the State Legislatures fought on the issue. Will it be “divisive”? You bet: but it will divide them far more than it will divide us. Those “Republicans” who will abandon a President in wartime over the radical redefinition of an age-old institution in order to appease a gang of sexual fetishists and their fellow travellers were never worth having in the first place.

In fact, of the most important wedges that Republicans can drive with this issue will be in the black community. Polls consistently show that American blacks are generally less pro-gay than the population as a whole. A great many of them do not take kindly to the efforts of gay activists to compare their “struggle” to the actual one that blacks in the United States have faced. The fact that many national Democrats now make this comparison with regularity can probably be profitably used. A skilful ad campaign in black markets, noting how many white Democrats have suggested a moral equivalency between blackness and homosexuality might generate a substantial number of new Republican votes or, at the very least, helpfully suppress black voter turnout. In any case, it will force the Democrats to respond: if they respond by waffling, it can be used against them- and if they respond by restating their position it will cost them votes.

Of course this is a “divisive” issue, but that should be regarded as a positive. I am unaware of any issue worth fighting over which is not “divisive” to some degree. With enough will and skill we can use the sharp edge of this issue to slash the throat of the Democratic Party and divide its head from its body. That’s the sort of division I seek.

If we can turn 2004 into a Democratic rout, the odds are very high that, come January 2005, a new the 109th Congress will be able to send the Amendment to the states.

This will not be a battle for the faint-hearted. While President Bush will have to take the high road on the issue, the real fight here will be in the gutters. Republicans have an aversion to knife-fighting that we’re going to have to overcome in order to win this thing.