SAME SEX MARRIAGE: CHECK THE CONSTITUTION

Your culture is shifting – can you feel it? If you feel vaguely uncomfortable, apprehensive and possibly even scared, you are not alone. Right now, major shifts in the American culture have everything to do with inclusiveness and exclusiveness. We are moving toward including the homosexual segment of our population, as we move closer to excluding our immigrant population. Ying, Yang. Push, Pull. Aahhh, ouch. Feel it?

I will save the immigrant portion of this topic for another day, but today let’s talk same-sex marriage. It is front burner now. You know that. It has been inching toward the front of our collective consciousness for a very long time now, but U.S. District Chief Judge Vaughn R. Walker just gave it the necessary impetus to speed itself up. Republican-appointed Judge Walker, on August 4, 2010, ruled that California’s controversial Proposition 8 is unconstitutional, in spite of the millions of Californians that voted otherwise in 2008. Proposition 8, you will recall, was a measure that made same-sex marriage illegal in California. Widely seen as precedent setting in the U.S., Prop 8 has given talking heads material for years now, and threatened to deny millions of Americans their constitutional rights.

In his ruling, Judge Walker (below, left)wisely and sensibly wrote this: “Moral disapproval, without any other asserted state interest, has never been a rational basis for legislation.” (Page 133). He also made the inevitable comparison to our country’s mid-20th century struggle with inter-racial marriage. He wrote: “Race restrictions on marital partners were once common in most states but are now seen as archaic, shameful or even bizarre. When the Supreme Court invalidated race restrictions in Loving, the definition of the right to marry did not change. Instead, the Court recognized that race restrictions, despite their historical prevalence, stood in stark contrast to the concepts of liberty and choice inherent in the right to marry.” (Page 114)

When Walker refers to ‘Loving,’ he is referencing the landmark case Loving v. Virginia, a 1967 Supreme Court decision that invalidated the 1924 Racial Integrity Act that outlawed interracial marriage. The plaintiffs in the 1967 case were Mildred Jeter, a black woman, and Richard Loving, a white man, who married in Virginia and were subject to criminal prosecution under the Racial Integrity Act. Watch:

Now, 43 years later, similar dynamics are showing up in the struggle to legalize same-sex marriage in America. You might think we had settled this equal rights dilemma all those years ago, but clearly we did not. Somehow, because two people with the same reproductive organs fall in love, America has collectively decided to disenfranchise gay people. How do you feel about that? Do you feel that you, as a citizen, have the right to deprive other citizens of their rights because of their sexual preference? Are your rights as a citizen in any way tied to your sexual organs? Let’s carry that just a step further: What if your rights as a citizen were challenged based on some things that you have done sexually in your life? Think back, real hard now. What if, all of a sudden, your citizenship was challenged because you had sex with someone other than your spouse? Or what if you were no longer allowed to visit your spouse in the hospital because of that one time you had sex with a prostitute? Or wait, what about this? What if you were turned down for military service because you like three-ways?

The very noisy objections of the anti-gay marriage movement are typified by one Tony Perkins, President of the Family Research Council, a right-wing Christian group dedicated to conservative policies. Perkins has been vocal in his staunch objections to all things homosexual. I like to think of Perkins’ group as Anita Bryant on acid. But that’s just me. Listen to what Perkins had to say about Judge Vaughn’s ruling:


You and I both know that 50 years from now we will look back on this the same way we look back on Loving v. Virginia. As I said earlier, you can feel the culture shifting right now. Even 10 years ago it was unheard of for some major corporations to extend employee benefits to the partners of gay employees, but now it is almost de rigueur. The idea of two men or two women adopting a child was not even considered just a few years ago, and now there are thousands of such families. The thought of making it legal for openly gay men and women to serve in the military was not even up for discussion not long ago, and now we are on the cusp of repealing the discriminatory, ill-conceived “Don’t Ask Don’t Tell” policy. It is happening, albeit perhaps not as swiftly as some citizens prefer.

In America, social change happens at a snail’s pace. When it does happen, as dictated by the judicial system, there is an inevitable backlash from those who cling to tradition, even if that tradition is flawed and discriminatory. In the end, when social change focuses on marriage, as it did with the Lovings, love trumps politics, history and prejudice. That will certainly happen again, but this time the recipients of equal rights will be gay Americans. That could include your sister, or your uncle, or your boss, or your best friend or your son’s best friend, or your pre-school teacher or…well, fill in the blank. These individuals are not anomalies. Rather, they are your fellow citizens.

Judge Vaughn’s ruling is not a radical move. Instead, it is an effort to extend equal protection under the law to all citizens. It is not an effort to change the law, but rather one to enforce existing law. The 14th amendment to the U.S. Constitution clearly states that no state shall “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.” With that very simple statement in mind, Vaughn wrote the following in his ruling:

“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”

That says to me that the only way gay Americans can be prohibited from marrying other gay Americans is by amending the existing U.S. constitution. Since that is unlikely to happen in our lifetime, I suggest you break out your tux, or your party dress and get yourself to the church on time. There are wedding bells about to ring coast to coast and surely you won’t want to miss the fun.