11 June 2009

Discrimination Never a "States' Right"

I’ve been thinking about President Obama’s [at least partial] answer to Brian Williams’ question last Friday about whether or not gays and lesbians have a friend in the White House. I have to say that I agree that it is unproductive, unnecessary, and not government “business” to be redefining “marriage.” But it is absolutely necessary to begin the process of redefining whatever we are to call the lifetime legal contract between two people that it is government “business” to license and which guarantees those two people the rights heretofore associated with “marriage.” Let us finally begin to adhere to the First Amendment and allow churches to do what they want; but let us also begin to defend the Constitution against those same churches. This is not a religious issue, and it is not a state issue.

I wholeheartedly support the Tenth Amendment as reserving to the states the powers not prohibited to them by the Constitution. However, the language of the Constitution very clearly does prohibit discrimination against any state's citizens by any other state. All citizens are one hundred percent equal in the eyes of the Constitution (at least more or less, since the Civil Rights movement), but government and the Constitution have proven many times to be two different animals. In application, it’s beginning to seem as though, to borrow from an old saying, nothing is equal but death and taxes. Church weddings aside, being a practice of the church and therefore out of the legal reach of government according to the First Amendment (along with their willingness or unwillingness to perform any such ceremonies), the actual legal contract binding two law-abiding, tax-paying, consenting, adult American citizens, whatever it's called, cannot, at least Constitutionally, be afforded to these two of the aforementioned citizens, and not those two.

In that sense, and in the sense in which I guarantee it to be perceived, it is no different than being denied the right to vote, or drive, or carry a gun. And it is absolutely no different in subjective foundation from the laws forbidding interracial marriages only a few short decades ago, until Loving v. Virginia (1967). The original judge in that case convicted the Virginia couple after they married in Washington, DC (because it was illegal in Virginia) and suspended their sentence only if they agreed to get out of the state. On appeal, he upheld his original ruling, actually saying: "Almighty God created the races white, black, yellow, and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix." That sounds to me very similar to the arguments flying around regarding today's marriage issues. The problem is that no one belief is ever going to be stronger than any other. That's just the nature of beliefs, and of opinions, but the law still has to be the law.

The Lovings' sentence was eventually invalidated by the Virginia Supreme Court, but they upheld the state's Racial Integrity Act, which had been in place for over 40 years (along with the Sterilization Act (OMG), not even completely repealed until the 1970s, not only banning interracial marriages but ordering the sterilization of everyone classified as "insane, idiotic, imbecile, feebleminded, or epileptic," used on a sufficient number of minorities hospitalized for different reasons, a precursor to the Nazi practice about 10 years later).

The U.S. Supreme Court finally overturned the convictions and held that "Marriage is one of the basic civil rights of man.... To deny this fundamental freedom on ... classifications [then just skin color] so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens liberty without due process of law."

Do we really want to start that far back? Can we afford to be this slow, again, in realizing that, in our attempts to defend God, we may actually be committing irrevocable offense? This is wrong. My beliefs, my opinions aside, the collection of principles governing this issue was written down and has been defended repeatedly for more than 200 years, 221 to be exact, as of this June 21. We should give it more credit.

Case facts from Loving v. Virginia, Supreme Court Cases: The Dynamic Court (1930-1999), 1999.