With the new rights of same-sex couples in three states to get married has come a lot of arguing – often permeated by misinformation and outright lies. What should be a simple matter best left to history is turning into a hideous back-and-forth about the rights of the individual and the majority (not to mention the difference between a business and a church).
Last week, things happened at a pretty dizzying pace. The Supreme Court refused to hear a case regarding challenges to gay marriage bans in Idaho and Nevada. The Ninth Circuit had determined the bans were Unconstitutional, running afoul of the Fourteenth Amendment’s equal protection clause. The refusal of SCOTUS to hear the case meant that the Ninth Circuit ruling stood, effectively striking down gay marriage bans in those states. Activists in Arizona immediately jumped on the opportunity, arguing that the Ninth Circuit’s decision applied to all of the states in the division. Same-sex marriage was immediately made legal when AG Tom Horne announced that it wasn’t worth fighting and he was ordering the court clerk to begin issuing marriage licenses to gay and lesbian couples forthwith.
The argument being made by most of those opposed to same-sex marriage is that the majority voted to approve the ban, so it should be allowed to stand. Several have also tried to say that there was no ban – that the law (known in 2008 as Prop 102) was only about defining marriage as being between one man and one woman. Unfortunately, both of these arguments hold no water. Arizona’s laws regarding marriage had specifically targeted same-sex marriage, going so far as to bar state and local officials from recognizing such marriages that had been performed in other states (a la DOMA). The court wasn’t ruling on whether gay marriage was right – it was ruling that a law that singled out a particular subset of the population was Unconstitutional and could not be allowed to stand. They were right on that.
As for the majority argument? We are a Constitutional Republic, not a Democracy. Tyranny of the majority does not rule the day in America. The minority cannot be told they don’t have rights simply because the majority doesn’t want them to. I’m sure a rather strong majority of voters in Mississippi and Alabama wanted to keep Jim Crow laws when the federal government forcibly repealed them in 1964, but that didn’t make them right and it didn’t mean the court should have upheld them. There’s a majority of very liberal people in Chicago and Washington, DC. Gun laws for a long time have been so strict that carrying (or, in many cases, even owning) guns has been nearly impossible. SCOTUS had to stand up for the minority and tell the majority they were violating everyone’s rights. This is the same principle. The majority determines a lot of things; there are some things, however, best not left to a simple majority. That is the point of a Republic.
Then there’s the “G-d” argument. “G-d says marriage is between one man and one woman, so that’s the way it’s supposed to be!” If you want to believe that, it’s up to you. I’m not here to tell you you’re wrong. I am here to tell you that you cannot codify your personal religious belief into law. The only mention of religion in the entire Constitution is in the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” That means that no government entity or law can tell you what you are allowed to believe. On the same token, it also means that the government cannot pass any law based purely on one religious belief or another. Your rights to believe that I am a sinner for being gay are protected. Your right to tell me I’m a sinner for being gay are protected. You have no right to pass a law against me because I’m gay.
Which will lead into the next article…Wedding Bells, Part II: The Hitching Post!