Marriage Equality and the Constitution

One argument that some use against Marriage Equality sounds like this:

The “Founding Fathers” of our country never intended our Constitution to be misinterpreted in such a way as to allow for “gay marriage”.

Let’s examine that line of thought a bit. If we go back to the Federalist Papers and other documents of the time, it’s obvious that some of the Founders never intended racial equality or basic civil rights for all citizens to prevail. Some of the more religious founders even wanted their religion established or at least favored in the new democratic republic they were forging. Throughout the posturing, attempted manipulation, and wrangling, many of them projected their self-interest upon the fledgling nation. They were not superhuman saints, they were people just like us (or at least people like many of the white men we know).

The Constitution and subsequent amendments were intentionally left open in a non-prescriptive manner because some of the more open-minded founders (Madison, for sure) recognized the injustices in the contemporary culture. The amendment process and the first ten amendments (Bill of Rights) were intended to provide for minority and civil rights. The freedom of religion, the press, and assembly, along with the right to bear arms and many other specific rights, were spelled out at that time. Ample provision was left to abolish slavery, provide for equal protection for all under the law, and even to prohibit production and use of alcohol (for a short, strange period).

One issue that existed at the time but was not addressed was marriage. One can assume that marriage was considered to be under the purview of the church, but we don’t have much information about the founders’ intentions concerning marriage in the new nation. Some groups prevailed upon their states to ban interracial marriages and provide the first governmental intrusions into marriage. Marriage didn’t enter into the federal civil rights domain until it became a matter of taxation and property ownership.

With this historical perspective, we can begin to understand the current furor over marriage equality for gay men and lesbians. Now that marriage is firmly ensconced in the federal tax codes and other federal laws and regulations, it is clearly a federally-defined institution providing certain civil rights. Additionally, it is a religious issue that most churches hold dear. The establishment clause in the First Amendment of the Constitution was bypassed here by the organic growth of taxation and regulation. In all honesty, the current debate over marriage equality is a debate on the First Amendment and the establishment clause. This perspective imperils legislation such as the Defense of Marriage Act (DOMA) on the grounds that defending a religious definition of a federally regulated civil right crosses the line of religious establishment.

What are our options? We could do nothing and ignore the obvious First Amendment issues, pushing the matter to the states. This will leave an open path to constitutional questions regarding federal tax law for the Supreme Court to address. Alternately, the federal government could return the term “marriage” to the religious realm, opting instead to establish a parallel civil union system for everyone within the tax code. This might not satisfy those religious groups that oppose marriage equality, however, because they don’t have the power to control other religions that may espouse marriage equality. Another path would be to co-opt the word “marriage” into the Federal civil rights realm and provide full marriage equality to all citizens while removing religious “ownership” and control of the word. I’m sure there are other paths and perspectives that may yield other solutions. The current situation, however, is not stable.

What will we choose?

Betrayal and karma

The current outrage of the gay and lesbian community over the Obama DOMA betrayal sounds hauntingly familiar. Betrayal is common in the political arena, as “fierce advocates” suddenly become traitors, cutting down the hopes and dreams of purported allies. There are as many reasons for betrayal as there are political causes, but the excuses give are usually the same.

Well, we ARE doing a lot for you. This is what the Obama administration is doing by throwing out the dry bone of partner benefits for federal government employees (can you believe it’s taken this long – oh, that’s right, the bush administration). The “fierce advocate” is rather timid, but by God he’s trying, right? It is also what the HRC tried to say after the Southern Comfort betrayal of the transgender community. It just doesn’t fly, does it?

Sometimes, you just have to wait your turn (it’s an incremental process). This one is especially rich. The idea that there is some kind of fermentation period for justice and equality is propagated by people hoping you’ll go away quietly while continuing to give them your money and political strength. Those who aren’t even allowed on the bus (vs. the ones relegated to the back seat) understand this well. Regardless of the fact that the Stonewall Inn was targeted at least as much because of gender variance as it was due of gay activity, we’re still waiting our turn.

We have higher priorities right now. Yes, we’re fighting two wars and trying to prevent others in the Middle East and the Korean peninsula. BUT, a hold on DADT discharges would improve the war situation and reduce the cost of training troops. A simple executive order could get this one rolling with little time spent. It is a fact, however, that a repeal of DADT would do nothing for gender-variant military personnel, and at least the VA does not begrudge treatment for gay veterans. There’s a parallel as well. Some people “higher up the food chain” in the lGBtq community obviously think that marriage equality is far more important than employment non-discrimination. It’s interesting, though. I don’t see anyone being forced into prostitution or drug dealing as a last resort because they couldn’t get married to the person they love…

I feel that this is a matter for states to decide. It’s evident from the administration attitude that they believe states should decide on marriage equality. To me, it’s obvious that some of the juiciest benefits of “marriage” are tied up in the FEDERAL tax codes, making it clearly a federal issue. This statement is simply a dodge, a red herring. Alas, we are depending on municipalities and sometimes states to end job discrimination against gender-variant people. This path was chosen by Representative Frank and the HRC in 2007 when they yanked gender identity and expression off their already doomed bill over a year ago.

I fully support the LGBT initiatives mentioned above. As a member of both the L and T parts of the community, however, I truly see the irony in the current outcry of anger at the Obama administration. It is IDENTICAL to last year’s outcry of anger from the transgender community against the HRC (for which the HRC has never apologized) and Barney Frank. Obama’s biggest problem (same for HRC’s Joe Solmonese) was the assertion of fierce advocacy when there was no intention of following through. Betrayal sucks, and karma will be served.

Can we use this moment of community humiliation as a means to strengthen and re-unite our fractured political strength? Will we humbly pull together, or will one faction stomp all over the others in their attempt to regain whatever position they felt they had before the betrayal? We have an immense field of common ground in employment non-discrimination, hate crimes prevention, marriage equality, and military service. I hope we can find it in our hearts to heal from within so we can be our OWN fierce advocates.