My take on the whole debate of gay marriage.
August 3, 2003. From my LiveJournal, but slightly edited.
Disclaimer up at the top: I am not a lawyer. I am not a politician. I am
not a Constitutional scholar (or I wasn't - this may belie that statement)
I am one person, and these are my opinions.
So both the Vatican under Pope John-Paul II and now Pope Benedict XVI and President George W. Bush
have said that gay marriage should not be allowed. And Bush and Company are
now pushing for a national law or perhaps a Constitutional Amendment that
would state that marriage is defined as a union between one man and one woman.
And on what basis do the Vatican and Bush make their statements? Christian
principles. In the Vatican's case, it is common knowledge that the Catholic
Church is Christian. In Bush's case, he admitted as such.
All well and good for the Vatican. The Catholics are perfectly welcome to
make sure that, within their church, marriage is between one man and one
woman only. That is the prerogative of their religion, and it is a stand
that many other Christian denominations are perfectly happy to make. Go
for it, your Holiness. Alienate an increasing segment of the population
here in America because of your principled bias. I don't give a damn, because
I don't follow the tenets of your religion. I'm a Pagan. I'm bisexual.
I'm transgendered. If you're right, I'm going to burn in hell for all eternity.
Believe what you want. But you don't have the right to force your religion's
beliefs and your religion's morals and your religion's principles on me.
And neither does Bush. (At the original writing of this, which will remain on
my LJ as is, he was sitting in the White House as this
nation's leader, although not by the popular vote. At the end of it all,
it was the Supreme Court that shut down post-election proceedings and appointed
Bush to the office. He was properly nominated for a second term.)
And where does it say that? It says that in the documents that our Founding
Fathers created when they declared the United States of America to be a free
and independent country. The second paragraph of the Declaration of Independence
We hold these truths to be self-evident, that all men are created equal,
that they are endowed by their Creator with certain unalienable Rights, that
among these are Life, Liberty, and the Pursuit of Happiness.
Yes, the Declaration of Independence speaks of a Creator. However, the first
paragraph contains this statement:
... the separate and equal station to which the Laws of Nature and of
Nature's God entitle them, ...
Can anyone out there state with absolute certainty that Thomas Jefferson
was writing about the Christian God? It's very likely. Jefferson was a
Christian, but by his own admission, a very unorthodox one. These days he
is regarded as a Unitarian. See the end of Thomas
Jefferson's Views on Religion, by Michael B. Smith as an example. And
then visit more pages on Jefferson's thoughts on religion, such as this
page from the University of Virginia (and do take the time to look around
this portion of the website, there are a lot of Jefferson quotes there)
and this page on church and state. Go to google.com and do a search for
Thomas Jefferson religion.
So, if I were a lawyer and this were a legal argument, I would argue that
gays who seek marriage are pursuing happiness, in accordance with the Declaration
of Independence. But using the Declaration of Independence as a document
spelling out law is under some debate. On one hand:
John Hancock (in his capacity as president of the Second Continental Congress)
and James Madison both considered it to be, in Madison's words, "The fundamental
Act of Union of these States." Reflecting that view, Congress has placed
it at the head of the United States Code, under the caption, "The Organic
Laws of the United States of America." (The Oxford Companion to the Supreme
Court of the United States, p. 223)
On the other hand:
Yet lawyers generally, and the Supreme Court in particular, have been reluctant
to treat the Declaration as part of American organic law, or even to accord
it the restricted status of the Preamble to the Constitution. (ibid.)
The adoption of the Thirteenth and Fourteenth Amendments allayed the urgency
of the question [of the Declaration's legal authority] by incorporating
concepts of equality, freedom, and citizenship into the operative constitutional
So that places this discussion in the hands of the laws of the United States,
with the Constitution being above all as the supreme law of the land. And
since the talk is of amending the Constitution, I am going to now focus on
the Constitution of the United States.
Let's begin with Article IV, Section 2:
The Citizens of each State shall be entitled to all Privileges and Immunities
of Citizens in the several States.
But this is not holding true these days. Vermont has passed into law Civil
Unions. No other state recognizes a civil union from Vermont. Massachussetts
actually has legal same-sex marriages. No other state recognizes them, and
some states have gone so far as to amend their State Constitutions to
recognize marriage as only between one man and one woman. There are
some states that have included GLBT people in their Civil Rights laws. But
not all - as of the original writing of this, there were 37 states that do not recognize the rights
of GLBT people as being equal to anyone else. Illinois was one such state.
As of this edit, Illinois has passed legislation including GLBT people in
its Civil Rights laws, although there are bills pending in the Illinois House and
Senate that would reverse that legislation. So in Illinois, I cannot be fired for being BT.
And yet, try firing someone for being hetero. Actually, I'd like to see it done.
"Sorry - you're straight. I have to
let you go because of that." Imagine the hue and cry about the "gay agenda"
with something like that. Yet if we complain about the same thing, there's
that hue and cry of the "gay agenda" again. That's a double standard. It
could well be argued that civil rights laws are not necessary. However, it
increasingly seems that unless there is a specific law enumerating individuals'
rights, others think that the rights they have don't pertain to anyone else.
That's unconstitutional. Read on for my argument supporting this position.
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; ...
During the 2000 presidential campaign, the website Web, White and Blue
conducted what is described as a "rolling cyber-debate", where the public
would be able to ask questions of the candidates. On October 15, 2000, this
question was submitted:
"With religious diversity increasing, what are your thoughts on the protection
of religious freedom and the separation of church and state? Should religions
like Wicca be banned from recognition by the military, as some legislators
Bush's reply was:
"I am committed to the First Amendment principles of religious freedom,
tolerance, and diversity. Whether Mormon, Methodist, Jewish, or Muslim,
Americans should be able to participate in their constitutional free exercise
of religion. I do not think witchcraft is a religion, and I do not think
it is in any way appropriate for the U.S. military to promote it." (see
page for more commentary about the subject)
Nice evasion. Wicca is generally accepted to be one form of witchcraft,
and Bush did make that connection. And yes, the US Military
does recognize Wicca as a religion and has included it in its 1990 printing of
Religious Requirements and Practices of Certain Selected Groups: A Handbook
for Chaplains". To read the appropriate section of the book, go
here. The United States District Court for the Western District of Michigan,
Northern Division, in the case of Marsh v. Hawley, Pennell and Batchett,
No. 2:95-cv-285, decision rendered June 30, 1988, recognizes Wicca as a valid
religion. The text of this decision may be found on
Bush's opinion about the status of Wicca and witchcraft as valid
therefore has little relevance as far as I'm concerned.
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
The Patriot Act threw that out the window. Read it for yourself. The Bush administration's wiretapping,
which violates FISA, is a further breach of Amendment IV.
Amendment XIV, Section 1:
... 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 this is why we fight for our Civil Rights. Because we are being
denied the equal protection of the laws. Show me, prior to the Civil Unions
legislation in Vermont, where there was any law that said a marriage had
to be between one man and one woman.
That said, it is in Illinois law at 750
ILCS 5/213.1 that "A marriage between 2 individuals of the same sex is contrary to the public policy of this State."
This was enacted May 24, 1996. Is against public policy the same as against the law? Lawmakers in Illinois do not
think so, for there are three bills (one a joint resolution) in the 94th General Assembly that seek to define
marriage specifically as one man and one woman. One bill and the joint resolution bill seek to have that
so defined in the Illinois Constitution.
Christians, with their moral values, are dictating to the rest of us what
we can and cannot do. But there is no law. Or there was no law,
anyway. And now we have laws that abridge the privileges of some citizens
of the United States unfairly and unequally. I refer, of course, to the
laws enacted on state and local levels that do define marriage as being between
one man and one woman - the "Defense of Marriage Acts". Some of these have also found
their way into various state Constitutions.
The big bugaboo in this is Amendment IX:
The enumeration of the Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people.
So just because it isn't in the Constitution doesn't mean it's illegal.
This, I suspect, is why the Religious Right of this country would like to
see a Federal Constitutional Amendment that limits marriage. But that would mean
that the moral values of a minority are being forced on the people
as a whole. The last time that was tried was Amendment XVIII, which prohibited
the "manufacture, sale, or transportation of intoxicating liquors". That
amendment was repealed with Amendment XXI. Amendment XVIII was a mistake,
brought about by people who blindly followed the few who were rabid in their
We now have the same thing happening in this country with gay marriage.
But the fact is that, until Howard Dean and the Vermont legislators acted
with the Civil Unions law and many other communities and states reacted with
so-called "Defense of Marriage Acts", gay marriage was not specifically illegal. People
who are following their religious dictates and forcing them on the rest of
us have made it illegal.
And this country was not founded upon Christianity. It states as much in
the oldest treaty still in force in this country - The Treaty of Peace and Friendship, Signed at Tripoli November
4, 1796. I quote Article 11:
As the government of the United States of America is not in any sense
founded on the Christian Religion, ...
The original and copies are preserved in the National Archives in Washington,
DC, under Treaty series No. 358. Here is a scan of the original handwritten
document. The Library of Congress has collected many American State Papers
and scanned them in online. The Treaty begins on page 18 of Volume 2 of
the Foreign Relations volumes and can be seen here - the document begins near the bottom of this page,
and you will need to click on the "Next Image" link for page 19, where it
continues. Article 11 is on page 19 of this volume. The treaty, with Article
XI, was ratified by the 1797 United States Senate, 5th Congress, 1st Session,
by unanimous vote.
And yet our religious leaders want to incorporate Christianity into our government.
Conveniently ignoring this Treaty. Conveniently ignoring the fact that
our Founding Fathers, most, but not all, of whom were devout Christians,
specifically excluded rule by religion in setting up this great Republic
in which we live.
Keep your religion to yourself. And keep it out of the law, where
it, under the law, does not belong.
Click here to return to the home page.