Wednesday, March 27, 2013

Marriage Equality Omnibus

The U.S. Supreme Court is considering same-sex marriage over the course of two days: Yesterday, they considered California's Proposition 8, and today will consider the federal Defense of Marriage Act (DOMA).

Marriage equality is a touchy subject, in no small part because so many irrelevancies crop up in the discussion and 'muddy the waters'. I say, let's strip away the irrelevancies in order to discuss the subject plainly.

Let's eliminate one irrelevancy right away: Just because the Bible prohibits something, doesn't mean that civil government has any cause to prohibit it. The United States is a constitutional republic, not a theocracy. End of story.

That argument being unequivocal, the next absurdity which emerges from that camp is the idea that legalizing same-sex marriage must also legalize polygamy, since unfettered marital choice must allow the option of marrying multiple partners. This argument fails for one very simple reason: Gay couples are asking to be married under the same conditions as straight couples. One of those conditions is that a person cannot have more than one licensed marriage at a time. Polygamy is a red herring.

Then there's the "biological" argument: Since homosexual couples can't procreate, their marriage is invalid. Please go find a heterosexual couple without children and inform them of this, right away.

Some people argue that gay marriage is an "invented" right; since the Constitution doesn't address marriage specifically, it may be regulated at will. Sorry to burst the bubble, but the Supreme Court of the United States has already ruled against them on that count, in the most aptly-named case of all time: Loving v. Virginia. The court ruled that the right to marry is one of the numerous rights protected by the Ninth Amendment. "Gay marriage" is not a distinct right from "straight marriage"- marriage, itself, is a right, and must be freely available to all persons who may lawfully exercise it- i.e. all persons who are of the age of majority and not mentally handicapped. To argue otherwise is to argue that a liberty may be converted to a privilege, which directly violates my favorite SCOTUS ruling, Murdock v. Pennsylvania: "No state shall convert a liberty to a privilege, license it, and attach a fee".

Then comes the 'conservative' legal argument: SCOTUS considering this case is akin to the Supreme Court considering Roe v. Wade, in that advocates are asking the federal courts to overturn an action of a state democratic process. I respond with the following:

1) That is precisely the function of the U.S. Supreme Court: to overturn democratic acts which violate individual liberties. We live in a constitutional republic, not a democracy.;

2) Roe was an attempt- and a miserable one at that- to resolve an irresolvable conflict between two diametrically opposed viewpoints of personal liberty. The last time such a conflict of liberties occurred, half a million Americans killed each other. I won't address either the Civil War or the abortion debate; I mention them to point out that same-sex marriage is not an irresolvable conflict of this type. Person A's exercise of religious rights is not affected in any way by Persons B and C's gay marriage, except in the one circumstance I will address below. This is an issue of equal protection, plain and simple. A minority wants to enjoy the same 'privileges and immunities' enjoyed by the majority;

3) On the subject of 'state's rights': States don't have rights! The United States is a constitutional republic, not a conglomeration of oligarchies. I am frequently astonished by how often I must remind my Republican fellows of this fact. States have powers granted to them by the public or prohibited them by the Constitution, and one of the legitimate functions of the federal judiciary is to ensure that these powers are applied consistently to all persons.

The one circumstance I referenced above, with respect to the exercise of religious liberties, is the prospect that individual gay couples or gay advocacy groups will use legal actions, or other means, to harass churches and businesses for choosing to not participate in same-sex weddings. This is not only a legitimate concern: it has already happened multiple times and it will continue to happen. For this reason, were I a legislator, I would refuse to vote for any gay marriage bill which doesn't include specific protections for those who choose not to participate. If you, the reader, support gay marriage but aren't of the same mind, then you are a hypocrite. We must preserve the rights of all individuals, including the freedom of individual conscience and the freedom of choice.

At the opposite end of the spectrum is the stock-standard libertarian position that government shouldn't be in the business of licensing marriage in the first place. To this, I respond thus: I agree wholeheartedly. However, eliminating marriage licensure is simply not going to happen. Continuing to bring it up serves no purpose but to change the subject away from this debate (and attempt to capture some degree of perceived intellectual superiority in the process). We must address the facts as they currently exist.

And then there is the "compromise" position: Recognize same-sex civil unions in all states. This sounds feasible and moderate enough, with one glaring problem: A civil union isn't a marriage! There are inequalities between marriage and civil unions- inheritance issues, immigration issues, health insurance and tax filing problems, etc. Even if these issues were all resolved perfectly, however, a civil union would still be less than a marriage. SCOTUS determined a long time ago that "separate-but-equal" was not a legitimate form of equality.

Now that we have eliminated all of these irrelevancies, I pose the following question to those readers who oppose marriage equality: Without making a biblical argument, a biological argument, side-stepping the issue with fantasy scenarios, asserting a fallacious legal argument, imposing a Jim Crow-era legal doctrine, falsely comparing gay marriage to abortion, or converting the right to marry into a privilege, I ask this: What else about gay people marrying bothers you so much that it's worth defying the Constitution (and continuing to lose popular support for the rest of the conservative agenda) in order to continue its prohibition?