Remember when conservatives used to be against tampering with the Constitution?

Remember when they used to go on and on about how we shouldn't resolve political battles by amending the Constitution, and how the Founding Fathers made it difficult to do on purpose.

That was when the issue was the Equal Rights Amendment. They defeated that.

Remember when conservatives used to be in favor of federalism?

Remember when they used to argue that states should be allowed to serve as the "laboratories" of experimentation and change that Justice Brandeis described?

Remember when they were so certain that insisting on a single federal standard was wrong, a violation of states rights?

Remember Ronald Reagan's "new federalism"? It was the theme of his first term.

That was then. This is now.

You're not going to find a politician outside of San Francisco and Cambridge, Mass., who's going to come out and endorse gay marriage ahead of polls that do. This issue, like every other civil rights issue in the past four decades, will be addressed in the first instance in the courts, one of whose basic functions is to protect minorities against discrimination.

But that's not what's at issue. Liberals aren't asking political leaders to support gay marriage. That's not the issue.

The issue is whether to tamper with the Constitution: to resolve the current political debate by shutting down any experimentation among the states, denying states' rights, rejecting federalism, turning conservatives into obvious hypocrites who are willing to dance on the head of a pin to see that the Constitution does not recognize equality for women but does require discrimination against gays. Quite a feat.

The best thing for Bush would have been to stay out of it.

The second best thing would have been to be politically strong enough to stand up to your base -- to do a Sister Souljah moment and tell conservatives that even though you oppose gay marriage, you are not going to embrace a constitutional amendment unless it becomes clear there is no other answer or approach; that the full faith and credit clause does not automatically require states to respect laws that violate their own public policy (it doesn't); to say that you want to take the issue out of the presidential campaign. To refuse to use the issue as a political wedge would, from the point of view of winning swing voters, have been the most effective political tool.

But a president whose poll numbers have been falling as fast as Bush's cannot afford to stand up to his base to win the support of moderates. Instead, he must do the opposite.

Bush held out as long as he could, but ultimately, he caved, embracing an amendment he had tried to steer clear of, giving the conservatives what they wanted, and showing his stripes to everyone else in the process.

How many people will cast their votes based on the issue of a constitutional prohibition on states recognizing gay marriage? Probably not a great many. For the 1 million or more gays who voted for George Bush last time around, however, it might well be enough to cause second thoughts. And in an election that may well turn more on character than anything else, Bush's ultimate positioning on this issue may matter less, to most people, than what it says about him that he chose to use it to score points.

Estrich is professor of law and political science at the University of Southern California. Contact her at sestrich@law.usc.edu

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