Gay Marriage: Rant the First

Originally posted July 30, 2003:

QUESTION: Mr. President, many of your supporters believe that homosexuality is immoral. They believe that it's been given too much acceptance in policy terms and culturally. As someone who's spoken out in strongly moral terms, what's your view on homosexuality?

BUSH: Yes, I am mindful that we're all sinners. And I caution those who may try to take the speck out of the neighbor's eye when they've got a log in their own.

I think it's very important for our society to respect each individual, to welcome those with good hearts, to be a welcoming country.

On the other hand, that does not mean that somebody like me needs to compromise on an issue such as marriage. And that's really where the issue is headed here in Washington, and that is the definition of marriage. I believe in the sanctity of marriage. I believe a marriage is between a man and a woman. And I think we ought to codify that one way or the other. And we've got lawyers looking at the best way to do that.


In my quest to become a well-spoken person on issues like this, I'm going to try to move beyond my initial reaction to this story, which was, "FUCK YOU, YOU BLITHERING IDIOT." I recently told Reena that I don't like to engage in critical debates, which is very true. I very rarely let myself form fully-developed rational opinions on subjects because it's much easier and maybe even more compelling for me to just feel strongly about what I think instead of backing it up with rational thought. Also, I am lazy. However, lately I've felt really really compelled to get my thoughts in line regarding the gay marriage argument, the background, and the dynamics for and against. What follows is my attempt to do just that--

because at least after a few hours spent researching this issue, I can say ultimately that I'm more informed about it than the President of the U.S. Okay. Let me see if I have this straight.

In his dissenting opinion on the Supreme Court ruling overturning sodomy laws, Justice Antonin Scalia writes:

Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.

And we all said, Hallelujah.

"State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are... sustainable only in light of (Bowers v. Hardwick's) validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision.... This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review."

And we all said, Hallelujah.

And yet, if indeed it is the end of morals legislation in America, then why is there such a sudden and significant upswing in the number of legislative moves that seem to be polarizing around gay rights issues in America?

At the same time the Massachusetts Supreme Court is scheduled to make a landmark ruling on whether to allow gay marriages, there is a flurry of movement within Congress to make homosexual unions constitutionally illegal. Suddenly the issue of gay marriage seems to be everywhere at once.

(You know, just as an aside, I think that the two men, Lawrence and Garner, who took their case all the way to the Supreme Court should be lauded as heroes of the gay civil rights movement. God love them for having the courage to do that, and to fight for such a long time on an issue that became not about just the personal lives of two people, but about the freedoms we all have to do what we like with our own bodies in the privacy of our own homes.)

It seems to my small brain that if the state of Massachussetts makes gay marriages legal, it would come into direct conflict with the Defense of Marriage Act, which bans any federal recognition of same-sex unions (while not explicitly condemning them) and also declares that states are not required to recognize a same-sex marriage performed in another state. (That act was signed into law by President Clinton, whom Michael Moore incidentally calls one of the best Republican presidents we've ever had).

But that's not even an arguing point, because the DOMA doesn't appear to be enough for conservative Republicans in Congress, who want to supercede the DOMA with a tougher Federal law on the subject. There are currently two proposals on the table, one in the House of Representatives (sponsored by a Colorado Rep whose name escapes me) and one in the Senate (sponsored by the guy my whole family helped elect, Sen. Bill Frist of Tennessee). Both would require a constitutional amendment. The one in the House would explicitly prohibit homosexual marriages according to the U.S. Constitution, while the one in the Senate, termed the Federal Marriage Amendment, would define marriage as a union between a man and a woman.

Now, granted, there's no reason that either of these two Amendments couldn't be overturned later on in the game, but the repealment (is that the right term?) would have to be ratified by the majority vote of at least 7 states. That would be a real difficulty, especially after the so-called moral majority has had the government deliver such a resounding blow against gay marriages.

It seems to my small brain that making gay marriage unconstitutional would be a direct violation of the 9th amendment that says that Congress shall make no laws infringing on other basic rights retained by the people (ie not explicitly granted through the constitution).

It also seems that as the laws currently stand, every state in the country could have their hands tied with lawsuits stating that being forbidden the right to marry infringes on individual constitutional rights.

Not to mention that any state, which tries to actually enforce laws explicitly denouncing homosexual conduct or unions thereof, is doomed to have its ass sued off for violating the 14th amendment and the terms of due process.

Which, it seems to me, basically means that things are rapidly coming to a head and the federal courts will have to issue a decision one way or another, just to keep the states from having to deal with the constitutional repercussions of their own laws.

What I think is at work here is basically two opposing forces: ie, conservative states are putting pressure to bear on Congress to pass a federal law which would validate their ability to make individual moral rulings in their own states--preferably before Massachussetts or Vermont or One of those other Liberal New England Tree-Hugging States makes gay marriages legal, thus mandating recognition from every state in the country. Yet, more and more, gay and lesbian individuals are filing suits for their personal liberty and happiness, and the courts of America are feeling the pressure.

So looking at it objectively, the issue is ultimately not whether homosexual marriage is legal or illegal, but whether the right to decide what is moral law and what isn't resides with the majority, ie the state, or the individual. I think that this is why the opinions of Courts around the country and the opinions of state and federal representatives around the country seem so divergent--because the courts are representing individual rights, and the states are representing entire constituencies. Ah, Checks and Balances.

It seems to me that if the Government is to make any progress towards a constitutional validation of gay marriages, it will have to be done through the court system. The Supreme Court has shown itself in favor of upholding the individual right in each of these circumstances, in keeping with the overturning of sodomy laws.

Perhaps that is oversimplification but I am a bear of very little brain.

I would also like to point out the 1967 case of Loving. v. Virginia, in which the Supreme Court found that the antimiscegenation statutes of the state of Virginia were unconstitutional under the Equal Protection Clause and the due process clause established by the 14th amendment.

In the court's decision on that case, they wrote, "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law."

Looking at this, the question then turns into whether this is America or Animal Farm--are all citizens equal, but some more equal than others? It seems to me unthinkable that the Court's ruling on the right of people of different races to marry should not extend automatically to the right of people of the same sex to marry. Indeed, it seems to me that even if the Federal Marriage Amendment were made constitutional, and marriage limited to the union of a "male" and a "female", the courts would immediately find themselves dealing with a new question: what constitutes "male" and "female?" Do biological precedents override gender identity? No, Senator Santorum, you just opened yourself up to a whole new debate--and good luck making headway on that one any time soon.

In 1986, the Supreme Court overturned a Georgia Court of Appeals ruling that sodomy laws enacted against an individual violated due process. Their ruling, i.e. Bowers v. Hardwicks, which by and large is bullshit, did contain the following statement on the purpose of the law: "The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed. Even (the person filing the suit) makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 States should be invalidated on this basis."

Since 1986 that number, 25, decreased to 13. Now that the sodomy laws of those 13 remaining states have been invalidated, the extent of the damage that state morality rulings can inflict upon individuals has decreased significantly--but there is still that key issue, which the Loving v. Virginia case leaves wide open: Is sexual equality less equal than racial equality? And if, as the Supreme Court said in that case, for a state to discriminate against a mixed-race couple is to effectively discriminate against every person in the state, are we effectively issuing collective mass injustice against every individual of every orientation, by disallowing gay marriages?

I think we are. Sexual discrimination goes beyond the boundaries of same-sex unions and moves us into the rights of individuals to explore our sexual, gender, even ultimately our spiritual identities. In his dissenting opinion, Justice Scalia argues against the basis for comparing Lawrence vs. Texas to Loving vs. Virginia, "because the Virginia statute was designed to maintain White Supremacy.” Yet earlier in his dissent he writes that the ruling on the Texas sodomy laws entails "a massive disruption of the current social order." Because of course the current social order isn't at all inherently structured around an idea of Gender/Orientational hierarchy. Right. In Massachusetts, arguing for the Supreme Court against the legalization of gay marriages, Mass. Assistant Attorney General Judith Yogman stated that the state wants to encourage the heterosexual model of marriage: "Limiting marriage to opposite-sex couples furthers the state's interest in fostering the link between marriage and procreation."

God forbid anyone disrupt the current social order, in all its benevolent distribution of equality, Mr. Scalia.

So, what does all this talk about Sodomy have to do with the issue of gay marriage again? Well, the ultimate effect of the overturning of the Texas sodomy laws is not to ensure equality to people of all orientations under the law, but to outline the hypocrisy inherent in our current Court and Legal stances on homosexuality and gay marriages. The majority opinion of the Court is that "the liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons."

Yet, as things currently stand, America is the kind of society that feels free to tell us that we can fuck whoever we want, as long as we don't start thinking we can marry them. In addition, the 'moral majority' continues to condemn homosexuality as an "immoral" act largely because of its stereotype of promiscuity, while being legally entitled to forbid gays and lesbians the very sanctitude of marriage that would prevent such promiscuity and discourage said immorality.

The overturning of the sodomy laws have indeed in this respect splintered our "current social order" to pieces by shedding light on the inherent moral hypocrisy behind the nations current attitude towards gay lifestyles and gay marriages. We cannot exist for long in such a state of paradox without people arguing on both sides going head to head and demanding a significant legal decision that would settle the issue once and for all, which is exactly what you see happening now.

Until new laws are passed making gay marriage legal in this country, we are sending the message to every citizen in the country that it's okay to engage in gender subversion, sexual subversion, or orientation subversion, as long as you don't try to integrate any of these things into any part of your identity as an American citizen. We are essentially telling people that under the law, they can be queer, as long as they're queer in the privacy of their own home. We are essentially telling gay couples that they can adopt children under the law, so long as they act the part of adoptive parents individually, and not jointly, under the law. We are telling anyone who is bisexual that under the law only their straight half matters. We are telling gays and lesbians that when they assemble peaceably together under the 2nd Amendment that they are not doing it as gays and lesbians, but as citizens who all happen to have a similar private identity, unsanctioned by law. We are telling the world that in this country that every minority has full recognition and protection under the 14th Amendment, except for the sexual minority.

Ultimately, if the decision to legalize gay marriages does not go forward, we will run the risk of jeopardizing our country's established place as a land of equal freedom and equal stature for all who reside here, and undermining the Supreme Court's statement that "this Court’s obligation is to define the liberty of all, not to mandate its own moral code." If it is not the responsibility of the Court to relegate moral freedom, how can it be the responsibility of the Congress, or the President, or anybody else who would stand in a position of authority and tell us what is "sin" and what isn't?

No, it simply is not. The freedom to marry is inalienable, and constitutional, and is upheld without regard to the gender, race, biological sex, or age of any adult in this country. If this country hopes to maintain its status as the home of the free, then we must recognize once and for all that sexual orientation has an equal place among all those other qualifiers, and work towards cultivating a peaceful and open-minded society where this right is taken for granted by all who live here.

(Also, it seems to me that as a public servant you are duty bound to withhold your personal opinion, and your personal religious faith, from your seat as a lawmaker. It makes me very uncomfortable when a president can calmly tell us all that "we are all sinners." The fact that he feels comfortable couching his language in terms of the Christian faith offends me, because it seems to me that if he is a Christian, standing in a position of authority, then he is taking himself not only to speak as a representative of the people, but as a representative of all Christians--and, I'm sorry, Brother George, but not all Christians are united on the belief that homosexuality is wrong and immoral. Not only that, but if George Bush feels comfortable speaking as a Christian on this issue while addressing us from a position of authority, it seems to me he is violating the constitutional separation of church and state. But then, that's a whole separate issue.)

And finally, from the same press conference, more astute words from our esteemed president:

"Our people have done a really good job of hauling in a lot of the key operators. Khalid Shaikh Mohammed. Abu Zubaida. Ramzi--Ramzi alshibh or whatever the guy's name was. (Laughter) Sorry, Ramzi, if I got it wrong."

That right there's a man who really knows how to show respect for his fellow human beings. Yep.

I'm so glad we elected him. Aren't you?

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