I have gone back and forth about doing this post because I mean really, does this need to be belabored?
Oh, wait. Yeah. It kinda does.
The Supremes have spent the last two days hearing oral arguments (which sounds dirty, but isn’t) about California’s Proposition 8, which banned same-sex marriage in the state, and the Defense of Marriage Act, which President Bill Clinton signed into law in 1996, defining marriage as being between one man and one woman. The issue, as it almost always is with the Supremes because they’re obsessed, is the laws’ constitutionality.
The thing is, this is one of those issues for which it seems a lot of Americans don’t care at all about the constitutionality. Which is what makes it pretty unusual, since we’re always harping on that particular document, and usually with good reason.
I’m interested to see how this comes out (haha, I said “comes out.” Like gay people.) because this is a situation in which I personally find that a strict originalist view of the Constitution will bear out the fact that the document says… um… nothing about who can get married and who can’t.
Ruh-roh Rustice Scalia.
I mean, it does say that black people are only 3/5 human… but I don’t think the strict originalists are really keeping to that definition. The 13th Amendment took care of that. And then the 14th Amendment says:
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.
And Article IV, Section 1 says:
Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
Which means if I, a straight person, were to get married in New York, it would have to be recognized as a valid marriage everywhere else. But Congress can establish whether the marriage was legit in the first state.
Now, I’m not a Constitutional scholar. I’m not even a lawyer. Not one single credit hour of law in college. I worked at a law firm part time for a little while and I dated a guy with his JD, but I don’t think that qualifies. But I am a citizen… considered unequal until 1920 and sometimes even now, since I’m a woman, but we’ll forego that particular argument at the moment, I’ll stick my thumbs in my ears and wiggle my fingers because I own property, and we’ll just settle on I’m a citizen. So the Constitution is important to me. And I don’t see an argument against same-sex marriage in it. So I guess it’s good that the Supremes have been contracted to figure it out.
I find that almost every argument against same-sex marriage is based on religion. As I have said many, many times in this blog, I fully respect a person’s faith, regardless of what it is, because I expect the same respect for my faith. I certainly don’t expect to change anyone’s minds. Instead, what I’d like to do is to point out something I think is a simple but pivotal aspect of this discussion:
The law is not about religion.
A friend of mine on Facebook unwittingly started a conversation about this the other day. One of his friends, who appears to be a fundamentalist Christian, pointed out three passages in the Bible that he felt supported his belief that same-sex marriage should not be allowed. I read the passages, one of which was in Leviticus (the third book of the Old Testament/Torah) and reflects a pre-Christ view of a harsh and punishing God… and two more, which were from Romans, a book in the New Testament attributed to Paul. My friend’s friend was gentle and respectful in his points, but based his entire argument against same-sex marriage on religion and these passages.
A minimally scholarly understanding of the Bible demonstrates the difference between the Old and New Testament tones in Christian belief, as well as the fact that Paul was not an apostle of Jesus and never knew Jesus when He was teaching, but came to his conversion after Jesus’s ascension. So technically, his writings were inspired by his faith, but not directly taken from Jesus’s words.
It’s easy to get caught up in the understandings of faith and forget the fundamental truth of this same-sex marriage question: that it is about whether same-sex couples should be afforded equal rights and protections under the law. And, more broadly, but no less significantly, it’s about whether the federal government should control marriage in any way… a question that, to some degree, is answered by the federal benefits extended to married heterosexual couples.
It’s not about religion. No matter how much someone believes that same-sex relationships are against God’s laws, or will, or word, or design, the questions of Prop 8 and DOMA are not about religion. They are about law, and the Constutition, and citizenship.
There are varied interpretations of those, too, of course. That’s why we have the Supremes. But on Tuesday, I found a passage I had forgotten existed despite the fact that it’s inscribed on a wall.
I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.
Those words are inscribed on the wall of the Jefferson Memorial. Because he wrote them.
He also was one of nine men who wrote the Constitution.
I think, understanding that religion does not govern the rule of law and the outrage of some does not mitigate the rights of others, Thomas Jefferson would agree…