“The drive for same-sex marriage is, in effect, an effort to make a sneak attack on society by encoding this aberrant behavior in legal form before society itself has decided it should be legal … Let us defend the oldest institution, the institution of marriage between male and female as set forth in the Holy Bible.” -the late Sen. Robert Byrd (D-WV)
Yesterday, a landmark ruling was announced that many gay and lesbian Americans have prayed for since 2008. Judge Vaughn Walker made the decision that didn’t really surprise anybody: he ruled California’s Proposition 8 Unconstitutional. Proposition 8 overturned a California State Supreme Court ruling that declared gay marriage legal within the borders of the state.
I say it wasn’t a surprise because Judge Walker is one of exactly three openly gay federal justices across America. I don’t think anyone doubted that he would rule the way he did. What pleased me wasn’t so much his ruling as it was his opinion.
It is no secret that I have long opposed same-sex marriage. My reasoning was that marriage is one of the last moral bastions in American culture; the benefits, financial and otherwise, were primarily meant to foster a positive atmosphere for raising children (and make it less expensive). I have argued that civil unions should be our fight, something that doesn’t infringe on what began as, and has ever been, a religious institution – whether those who partake in it see it that way or not.
Judge Walker has made a believer out of me, though. He brought up points that I had not considered. He also made me think of a few of my own.
At its heart, marriage has always been firmly rooted in religion. For the first two hundred years of American history, having a child out of wedlock was a taboo that could result in losing one’s entire life, career and all. It was the same way in most of the Western world until the 1960’s. That was largely due to religious sensibilities. It has long been seen as the responsibility of a pastor, rabbi or priest to oversee marriage ceremonies. It remains, to this day, the only legal institution in the United States that is presided over by both the church and the government at the sanction of the law.
Judge Walker disagrees with this, as do I. Married couples are not required to have children, nor are those who wish to have children required to marry. Marriage in today’s culture is supposed to be about love (or the benefits that come with it, particularly if you’re in the military). American culture does not support betrothing girls, nor is dowry paid any longer. Women have equal rights and equal footing with men, and interracial marriage was legalized decades ago. Plus, it is easy to dissolve a marriage nowadays.
The place of gay people in our culture has changed, too. Once seen as sick, twisted individuals in need of a cure, popular opinion (while not always bright and rosy) is far better than it once was. It’s no longer taboo to be gay or lesbian, unless your entire life is wrapped up in religion. We are portrayed as normal, productive members of society on TV and in the movies. We no longer have to fear losing jobs or housing because someone doesn’t like our sexual orientation. We no longer have to hide from public view or lie about who sleeps with us in our own homes.
Having pointed out that the current incarnation of marriage, as supported by the government, is heavily religious, I have to bring up another point. Judge Walker pointed out that marriage is now a civil matter. The establishment clause of the First Amendment says this: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Walker also opined that of all of the testimony offered by the organization defending Proposition 8, all of it was personal opinion based almost entirely on Judeo-Christian beliefs. According to the First Amendment, Christians are allowed to believe as they like and express it peacefully. Congress, however, while unable to prohibit them from expressing their views, is also not allowed to write said views into law. It is up to the people to decide.
The final argument that has been made regards voters’ rights. Our process is in place for a reason. The biggest gripe is that the voters decided to enact this legislation, and by overturning it, Judge Walker is supposedly engaging in judicial activism. Not so. As long as he can truthfully argue his decision and prove that it has sound basis in law, including the Constitution, he isn’t writing the law – he is interpreting it, which is his job. Yes, the voters can enact any law they wish to enact. On the same token, another group can challenge the Constitutionality of that law. Our system does not begin and end with the popular vote. If it did, segregation might still be in place today. When the Civil Rights Act of 1964 was signed into law, 12 Democrats and one Republican filibustered to stop its passage. They nearly managed to stop the bill dead in its tracks. Until the Supreme Court of the United States rules one way or another, the fate of marriage rights in this country will remain in a semblance of limbo.
I posted Robert Byrd’s comments at the beginning of this post for a reason. Byrd was a Democrat. He opposed the Civil Rights Act, managing to block it at least once before it finally passed. Despite those comments, made in 1996 in support of the Defense of Marriage Act (signed into law by Bill Clinton and defended by Barack Obama), our GLBT counterparts call us traitors for being politically conservative. They tell us we’re deviants for not all being registered Democrats. What has the current uber-majority of Democrats done for us? Nothing, so far.
Here’s something I bet you didn’t know about Walker. He was already openly gay when President Ronald Reagan first nominated him for the federal bench in 1986. Citing his representation of the US Olympic Committee against the Gay Olympics (a case where the USOC sued to stop the group from calling their event Olympic), Nancy Pelosi led the Democratic charge to block his appointment. It was George H.W. Bush who succeeded in appointing him to the bench he now holds. Fellow gay conservative Drew Sweetwater pointed out a few more facts. It was a Republican from Florida who first introduced legislation that would repeal DADT, Ileans Ros-Letinen; Democrats refused to allow her bill to move to a vote. Republican Secretary of State Condoleeza Rice appointed an openly gay man as the country’s AIDS czar. President George W. Bush approved the highest funding in history for AIDS research. Sarah Palin’s first veto as the governor of Alaska was amazing: the Alaskan people voted to end benefits for the same-sex partners of state employees. Palin vetoed the bill.
I fail to see how Republicans have been the ones fighting against our equality in society.
In the end, the government must do one of two things in order to be in line with the true meaning of the First Amendment. They either need to make marriage legal for any couple comprised of two consenting adults, or they need to get out of marriage altogether, leave it to the church to define, and issue civil unions for all couples, whether gay or straight.