“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.


15 thoughts on “Equality

  1. Knowing how smug liberals probably are over the court ruling, I have been really upset over its conclusion. They think of it as a victory against “bigoted conservatives,” and that ticks me off to the nth degree.

    Reading your post has helped to calm me down. Thanks.

    “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.”

    That would be one of the ideal options, but unfortunately, I do not see our country heading in that direction. I am not surprised the main argument was based on religious grounds because of how marriage existed for millennia. A part of the problem is that our culture is changing, but we are using the same old terms that do not apply as they used to. Some people continue to believe in the old ways and use the old words with their original intentions while other people do not. In order to move into the new culture, we need to change our terminology to match the new culture.

    Civil unions – and it doesn’t matter if it is limited to gay couples or includes all couples – are the best way to honor both religious values and the need for equal rights. I think that if civil unions were to include all couples, then only the genuinely religious would call themselves married or they might just need extra paper work signed by a religious leader.

    I like the idea of extra paperwork for religious couples as it would determine whether someone receives a marriage liscence or a civil union liscense. Neither gay nor straight couples would be restricted to either one. They would be exactly the same thing with the exact same rights, but it would be a legal recognition of one’s religion or atheism.

    Marriage should be something that occurs in a church with leader’s approval no matter the orientation. Civil union should be something that occurs with a justice of the peace regardless of orientation; (technically-speaking then, some straight couples are already in civil unions.) Thus gay couples can be married or can have civil unions depending upon their own beliefs. Married couples will need to show their marriage liscence to the justice of the peace to obtain the rights given to civil union couples.

    Unfortunately, I do not see that happening anytime soon, either. I hope this does not bother anyone… I have to get ready to go to campus soon.

  2. I fully support equal rights, and there are two ways of looking at marriage – as a religious union or as a set of rights. I do not see marriage as being about love because neither a priest nor a politician can legislate or regulate human emotion. Love is simply respecting the other person and enjoying the other’s presence.

  3. Karen, I get just as irritated with the smug attitudes and snarky comments about it. That’s a big part of why I have ardently opposed the anti-Prop 8 protests. If it gets under your skin, you’re in good company. There’s no reason for them to behave the way they have.

    Next to come will be my take on the role of churches in gay marriage. It’s something we must tread carefully on.

  4. “Next to come will be my take on the role of churches in gay marriage. It’s something we must tread carefully on.”

    I agree Mel. It’s an area frought with potential trouble. Houses of worship and the related entities they control are protected by the 1st amendment.

  5. I’ve had some time to think about this. This is the issue that is not an issue and both sides of this issue need to understand that.

    Legalizing same sex marriage is a high priority for the gay and lesbian world. But the act of getting married is not. Liberal California with its very celebratory gay rights attitudes has a paltry 16,000 legally married same sex couples minus 1 couple I know how is filing for divorce. Out of over 36 million people that’s nothing. Same sex marriage is a flop in CA and I bet it is a flop nationwide.

    To those who oppose same sex marriage, don’t worry. Jeff and Ted won’t move in next door as a married couple. But they probably will shack up. The numbers bear that out. Even if same sex marriage is taught in the schools, don’t count on the hinges at the court house door being worn down by couples lining up to take the vow. Get over it. It’s not a threat.

    To those who demand same sex marriage with the highest of zeal – give me a break. Statistically you won’t marry anyone of the same sex. Not having permission to do that doesn’t change your life one bit. The right to marry is a far less relevant right when compared to free speech and freedom of religion. Not having that right under the current statistical paradigm is no loss.

    All in all Judge Walker ruled on nothing because this issue is nothing. WHen the percentage of same sex couples who are married approaches that of straight people then it becomes something. But until this happens, much ado is made about nothing. I find is a sad waste of time, effort, money, and political capital.

  6. I wasn’t particularly impressed with Judge Walker’s analysis, or his “fact finding” — the LOL moment for me was when Walker sympathetically quoted the gripe of the gay male plaintiffs that it was “an awkward situation” to go into a bank and say “my partner and I want to open a joint account,” and to hear the bank employee quite innocently ask, “I see, so this is a business partnership“?

    Attention, Judge Walker: that sort of two-second “awkwardness” is a freakin’ Seinfeld moment, not a civil-rights crisis!

    On the other hand, if the defendants of Prop 8 were totally unwilling to cross-examine the plaintiffs more aggressively, it’s not the judge’s job to pick up the ball for the defense.

    In short, if those pushing for Prop 8 did an incompetent job, they deserved to lose, and the gay plaintiffs win by default. But that doesn’t mean Walker merits praise as a judge.

  7. On a totally unrelated note: I just heard that Ann “Rabidly Homophobic™” Coulter (the real one, not a drag version) will be a featured speaker at the GOProud-sponsored “Homocon” event in NYC on 25 September — talk about non-traditional casting!

    While we’ll have to wait till 26 Sept. to see how this works out, if nothing else, it’s a shrewd publicity magnet for both parties.

  8. What impressed me about Walker’s opinion was the culture changes he pointed out, not to mention the part where he deemed marriage a “civil matter.”

    I had not thought of it that way. I had always, all my life, thought of marraige as a religious institution. In reality, that’s what it is. He is correct, though. Our government may recognize the status of a religious institution but it may not create or uphold laws based on one.

  9. “Our government may recognize the status of a religious institution but it may not create or uphold laws based on one.”

    Wouldn’t this just be a stronger case for why we need civil unions to guarantee equal rights? When these benefits were first attached to marriage, the entire nation was deeply religious and no one assumed our society would become as non-religious as it is today. I think the reason why liberals keep pushing for “gay marriage” instead of improving the benefits of civil unions is because they want to get in the faces of Christians.

    I like the idea of having civil unions for the non-religious individuals regardless of orientation and marriages for the religious individuals regardless of orientation, but providing a priest agrees to the ceremony. Both will need to go to the justice of the peace to obtain their rights, but some will be registered as civil partners and some will be registered with traditional terms. This way, all the benefits will be given equally to all couples no matter their belief system.

  10. Great post, Mel.

    I guess I’ve always been the “odd gay out” here as a proponent of gay marriage. That being said, I’m torn on this decision. I hate to see the courts overturn voter decisions as a matter of states rights, but I also see your point as illustrated with the Civil Rights Act of 1964.

    I’m sure this will go to the 9th Circuit. They will uphold it. Then it will go to the Supreme Court. Not sure how that will turn out. Kennedy will be the decider.

    I’ve always said that the changing attitudes in society will lead to progress just as they did with attitudes towards African Americans. The younger generation is more accepting concerning gays and lesbians.

    I’ll be watching this case go through the courts with great interest.

  11. “I guess I’ve always been the “odd gay out” here as a proponent of gay marriage.”

    I too want to see gay marriage. How it happens is more important to me than if he it happens.

    At the same time, given the rather tepid number of same sex couples getting married, let’s keep this issue in perspective too. This is a bigger issue than it needs to be and should be.

    I am of the school is you have a Right or Freedom and choose not to use it then don’t whine if it is taken away. I don’t buy the argument of ‘Well I don’t want to (fill in the blank) but I do want to have that choice.” If you don’t want to (fill in the blank) then you’ve already made your choice. If you are not given the choice to do something you don’t want to do if given a choice, then you’ve lost nothing.

  12. I agree Mel (but you and I always agreed on this overall). Glenn Beck said last night he really couldn’t care less anyway and he was right, there are much bigger fish to fry.

    But the federal government has to let go of its handle on marriage. It should never have been a federally granted institution. It’s complicated the matter and gets a bunch of liberals to run around asking for MORE privacy in the hands of the feds.


  13. “I had not thought of it that way. I had always, all my life, thought of marraige as a religious institution.”


    American efforts at being efficient have created the view you once held about marriage.

    In many European countries, couples typically have two wedding ceremonies. If they choose, they can have a religious ceremony. But, in order to have a legal marriage a couple has to go to a government office and have a ceremony performed there. After that ceremony the marriage is legal.

    Now it is a waste of time to say your “I Do” twice. We thought that way here in America. So as long as your marriage license is signed by someone who can legally officiate a wedding, one ceremony is all that is needed. For most people, a religious wedding was their option. So marriage became associated with organized religion.

    However the nuts and legal bolts of it then and now never changed. No couple is legally married in the U.S. until the marriage license is properly signed by both spouses, witnesses, the officiant, AND the marriage license is properly filed with the county. You can say I Do all you want. But until that licensed is signed an filed, that I Do means nothing under the law.

    So by trying to be efficient, America has unintentionally distorted what marriage really is in the legal sense in the U.S.

  14. I believe the government has NO place in marriages. Leave it to the religious folk to decide who should and should not be married. There would be NO governmental, or legal benefits awarded to married couple.

    The government should issue CIVIL UNIONS to couples who wish to have legal and governmental recognition of their union. This includes domestic violence protection, tax breaks, social security benefits, insurance insurance, hospital visitation, inheritance, and any other of the 1,000 benefits that come with marriage today.

    If couples want the government to recognize their marriage then they need to be civil unioned also.

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