WEEK OF APRIL 12, 2009

A Constructionist View on Same-sex Marriage

A person who is as opinionated as I am is indeed fortunate to have someone in the family who can effectively challenge those opinions and give that person reason to question them and either reject them or have them reinforced through contemplative analysis. In my case, this stimulus is provided by a very bright young woman named Jessica who is studying to become a teacher and spends a good part of her days in one of those bastions of liberal depravity also known as a public university. Although she considers herself to be politically conservative, an assessment that I share, she is quite capable of repeating much of the liberal prattle that she is exposed to on a daily basis. As a result, we often get into heated discussions about this or that subject, often concluding that, in general, our views are shared, but we have very different ways of arriving at them.  

This Sunday morning was no exception. As Jessica and I sat at the dining room table perusing the morning newspaper, with me getting my normal fix of caffeine and she her morning fix of Golden Grahams, a comment was made about some minor piece of news. I cannot remember now who offered the comment. However, in less than a minute we found ourselves in a full-blown discussion about two widely separated issues - Gay Rights and the cultural differences between the Islamic world and the West. We also briefly touched on abortion issues. That we could simultaneously traverse these diverse issues attests to the depth and magnitude that these discussions reach. As my typical 13 year old grandson might say, “For a girl, she’s pretty smart.”  

Discussion over, Jessica proceeded to get ready for a rare Sunday morning meeting. As I finished reading the final sections of the newspaper, I came across an article that could not have fit in better with at least half of our discussion. The article was entitled Young voters push for same-sex marriage (Sunday’s Denver Post) by respected and longtime Denver reporter Lynn Bartels. 

Two statements in the article jumped out at me, so I grabbed a highlighter and circled them in anticipation of continuing our discussion this afternoon after she had a chance to read the article. The first statement said,

Allen, of Lakewood, and his girlfriend…, are behind a (state) ballot measure that would change the state constitution to recognize marriage as a union between two consenting adults.

“We have contributing, tax-paying citizens who don’t have the same rights as everyone else, and that’s not fair.”

One of my arguments in opposing much of the existing legislation or constitutional amendments permitting gay marriage is the “slippery slope” argument, also referred to in some discussions as the concept of “unintended consequences”. The wording of any proposed amendment is the quintessential example of my concern. I refer, of course, to the phrase “between two consenting adults.”  If this were to be the way that the amendment is actually worded, it would open the door to multiple legal challenges in which, for example, a brother and sister may want to marry, or two first cousins, or a grandfather and granddaughter. The presence of existing laws that I have seen would not prevent such challenges, in that one law or a conflicting one could be argued to be contradictory, requiring that one or the other be scrapped.

The other statement that drew my attention described an alternative proposal:

A second ballet proposal would give “benefits, protections, and responsibilities” provided in traditional marriage.

To me, this is a far more sensible approach that would significantly reduce the potential of the “slippery slope”, but would still be considered to be discriminatory by many gay and lesbian couples.

During the five years that The Drum and Cannon has been online, there have been several articles appearing here that expressed concern about the erosion of our country’s moral values. However, although I fully agree with the general consensus that our nation and our system of laws was founded based on Judeo-Christian values and belief, which I greatly respect, I also agree totally with the First Amendment prohibition of the establishment of a state religion. Notice that I did not refer to a “separation between church and state”, because our Constitution does not specify such in those terms, and the phrase is at best a subjective opinion of what the First Amendment actually does specify. Regarding religion, it states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;….”

This, then, begs the question as to whether or not Congress can pass laws that reflect the religious beliefs of some, but not all, religions or religious people in the United States. It is my opinion that it may not. In other words, it would be unconstitutional for Congress to pass any law banning gay marriage, abortion, or even the eating of meat on Fridays during Lent. It is, of course, the role of the U.S. Supreme Court to determine the constitutionality of specific laws. I can only express my opinion, and perhaps lobby for support to have my specific beliefs enacted by some other means if SCOTUS disagrees with me. The question of whether the majority of people in our country agrees or disagrees on a specific issue is wholly irrelevant in this case. Our Founding Fathers provided another way for the majority to express their will other than through simple legislation. That other way is through the constitutional amendment process.  

The authors of the Constitution made the amendment process intentionally difficult, primarily out of their concern over the “tyranny of the majority”. If our nation were a pure democracy, which it is not, the majority would be able to trample on the rights of the minority through the simple act of enacting new laws at its pleasure. We would have anarchy, in effect. Our Constitution and our system of government prevents this, and rightfully so. If there are enough people who are convinced that the gay rights issue should be resolved at the national level, the path is there to have it. I seriously doubt that there would be sufficient support for such an amendment to have it passed.  

Assuming, then, that the federal legislative approach and the constitutional amendment process are unavailable to opponents of gay rights, the only remaining federal-level weapons would be an Executive Order or a Supreme Court ruling. It is unimaginable that the Obama Administration would issue an Executive Order to ban gay marriage, a even if a conservative president were to be elected to office in 2012, it is highly unlikely that he or she would use the powers of the Executive Office to address such a contentious issue.  

This leaves us with no option but to deal with the Gay Rights issue at the state level. In this respect, it bears many similarities to the issue of abortion. Until such time as the U.S. Supreme Court addresses an issue arising out of the enactment of state laws, as it did with Roe v. Wade, that is where the Gay Rights issue will remain, and properly so, in my opinion. 

Iowa recently became the third US state to allow same-sex marriages, along with Connecticut and Massachusetts. In Iowa, the State Supreme Court upheld a lower court ruling that Iowa’s law banning same sex marriage violated that state’s Constitution. While there are other states that allow civil partnerships or other unions, but they do not carry the same legal weight as marriages according to Gay Rights activists. In issuing its ruling, the Supreme Court stated that its ruling "reaffirmed that a statute inconsistent with the Iowa Constitution must be declared void, even though it may be supported by strong and deep-seated traditional beliefs and popular opinion".   

Perhaps nothing more clearly illustrates the complexity of this issue than what has taken place in California. In May of last year, the State Supreme Court struck down in a 4-3 decision a law that had been on the books since 2000, known at the time of enactment as Proposition 22, which stated, "Only marriage between a man and a woman is valid and recognized in California." Opponents of gay marriage proceeded to have placed on the November 2008 ballot an initiative that would reinstate the restriction, but this time as an amendment to the State Constitution, expecting to prevent the Supreme Court from again ruling it as unconstitutional. This presents a formidable challenge to the California courts and Gay Rights activists. On the other hand, if the issue makes its way to the U.S. Supreme Court, it could be the case that resolves this issue once and for all. 

An article entitled Roe v. Wade: Its basis; court philosophies; political aspects that appeared on the Religious Tolerance website discussed the concept of Due Process, which formed the basis for the Supreme Court decision on the abortion issue. Its key points reflect the same judicial issues as those involved with same-sex marriage:

The basis of the Roe v. Wade decision: 

The Supreme Court based its abortion access decision on the right of personal privacy, which the court finds implicit in the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.  

"Due process of law is a legal concept that ensures the government will respect all of a person's legal rights instead of just some or most of those legal rights, when the government deprives a person of life, liberty, or property. Due process has also been interpreted as placing limitations on laws and legal proceedings in order to guarantee fundamental fairness, justice and liberty" to all citizens.  

The Supreme Court has determined that the due process clause implies that governments cannot pass legislation that intrudes too deeply into the personal life of its citizens. There are limits to the ability of states to control personal behavior.  

Section 1 of the 14th Amendment states: 

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (The due process clause is emphasized.)  

Under this clause, the U.S. Supreme Court has "...recognized such rights and the right to an early abortion, the right to use contraceptives, [and] the right to medical treatment..."  For opposite-sex couples, the court has also recognized "...the right to marry."  In mid-2003, the court also based its Lawrence v. Texas ruling on the right to privacy. That decision gave heterosexual, bisexual and homosexual adults the right to engage in private consensual sexual activities, even if society generally disapproved of the behavior. 

Mr. Justice Stewart referred to the Fourteen Amendment when he issued a concurring statement in Roe v. Wade. He wrote, in part:  

"Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment. It is evident that the Texas abortion statute infringes that right directly. Indeed, it is difficult to imagine a more complete abridgment of a constitutional freedom than that worked by the inflexible criminal statute now in force in Texas." 

Reversing Roe v. Wade:

This ruling has been in effect for over three decades. But it could be reversed at any time.

Consider the ruling by the U.S. Supreme Court in its famous 1986 case: Bowers v. Hardwick. That decision affirmed that the State of Georgia had the authority to pass laws which criminalized private, consensual same-sex behavior which the legislators felt was improper or immoral. Seventeen years later, in 2003, the Court issued its Lawrence v. Texas ruling which repudiated and apologized for its former decision. The majority of justices changed their mind and ruled that states no longer had the authority to criminalize private consensual activities, simply on the grounds that most people considered the behavior to be immoral. They based this decision on the 14th amendment's right of personal privacy and liberty -- the same basis on which Roe v. Wade was decided. Justice Kennedy, writing for the majority, apologized for the court's 1986 error. In an amazing passage, he stated that Bowers' "continuance as precedent demeans the lives of homosexual persons....[That decision] was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled." The 2003 vote was 5 to 4. This is a very common ratio for cases involving moral and ethical topics -- particularly those involving human sexuality.

The Drum and Cannon neither promotes nor opposes social issues involving moral questions from the perspective of any specific religion or religious belief. While every individual has the right to form his or her own political views, priorities, and preferences based on whatever theological beliefs he or she chooses, I would find it to be equally objectionable, for example, to impose upon non-Christians certain aspects of Christian belief as it would be for members of Islam to impose their religious beliefs on me through the enactment of federal, state, or local laws. This does not mean, however, that the opinions here cannot express moral concerns regarding society, cultures, or nations in a general sense. The theory of moral relativism does not have a home here. But inasmuch as I do not perceive that laws permitting same-sex marriages in and of themselves harm me personally or any other individuals in any way nor deprive us of our rights, provided that adequate safeguards are included so as to prevent their use to justify to a broader range of  applications, I would not oppose them. Whether or not I find homosexuality to be acceptable in my own life is irrelevant. As a firm believer in individual freedom and liberty, I realize that, in America, I cannot impose my personal preferences on others’ actions, as long as those actions do not deprive others of their own freedom and liberty.     

 

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