The Calm Before the Storm
I am honored to be able to put forth my arguments without fear of reprisals or recrimination in a pluralistic society in which freedom of speech is still championed by virtue of the First Amendment.
A great TED talk on free speech appears here.
I also acknowledge my arguments will be contested, ridiculed and that I will be vilified as a gay-hater. Even if one of my good buddies, who I've known since 1972, is gay. Here we are at a reunion:
Also, I am not ignorant to the facts of life: no matter how strong a case I make, no opponent will concede defeat, especially not a legal scholar and Presidential candidate. It is simply not in the order of things. It just won't happen. Not in this lifetime.
I have not a single doubt that after all is said and done, at the end of the day, when the dust settles, gay marriage will become the law of the land. And, for my own peculiar reasons - which I will come to at the end of my diatribe - I take special delight this will be the case.
I feel this posting is a bit epigrammatic, since I am making my last instalment on my 62nd birthday. I wish for no other gift than to serve America.
It gives me cause to reflect on the reasons I was born. Life has reasons that reason knows nothing of.
As part of the preamble, I should emphasize that I will not ever be running for public office. I do have a heart condition which purportedly leaves me with little time on this planet. We must all move on someday.
For these reasons when it comes to public opinion, to paraphrase Sam Houston: I don't give a rat's behind.
I am not interested in being right or wrong, only in doing what's right by my conscience, come hell or high water. What's the worst anyone can do to me? Burn me at the stake? I already had a near death experience in 2006 and it was bar-none the most peaceful experience of my life.
So, to anyone with plans to throw me under the bus, I say: bring it on.
As you will see, I will intentionally erode my position - to my detriment - in order to present a balanced argument. The language I use is plain in order to make the discussion intelligible to the average reader. I don't lace my comments with legalese or high-brow idiom. And though I may sound antagonistic to gays, I am hoping by the end of my argument they will realize that I am, in my own way, their advocate in their pursuit of their particular brand of happiness. I like to think of myself as an accommodator and bridge-builder.
I am responding to Andy Basiago's comments on Facebook. For those not familiar with Andy, he will be running for
President in 2016.
These were his comments:
1. "I support gay marriage on the grounds that to deny gay people the right to marry violates the Equal Protection Clause of the Fourteenth Amendment. I would admonish those who disagree with me to consider the fact that the Constitution was drafted to protect minorities from the majority, not to protect the majority from minorities. As a legal scholar, I am confident that my position on this issue is the correct one and that it will ultimately become the law of the land."
2. "In furtherance of equal protection, I would have to say that the line should be drawn at gay marriage. The other things you list can all be prohibited based on valid exercises by the states to police public health, safety and morals under the reserved powers clause of the Tenth Amendment. It is far more difficult to argue that outlawing gay marriage is a similarly legitimate exercise of the police power. Prohibiting any of the things that you cite does not create a "suspect class" under the Fourteenth Amendment, but outlawing gay marriage does. Gay people are denied a right that straight people may exercise, namely, the right to marry. In all of the other examples of sexual activity that you cite, the ban applies to all citizens without creating a suspect class of citizens to which the ban exclusively applies. Not so in banning gay marriage."
3. "I myself am an avowed heterosexual who reached my conclusion as a result of interacting with gay couples in my law practice who sincerely love each other and want to marry the same way straight couples can. I think it is important to honor the Iroquois principle of walking in the other person's moccasins to truly understand them and their life experience. My view of it now is that where love exists between two consulting adults, let no man or state put asunder. This is what I think Christ would teach, too."
At the risk of coming across as pedantic, the following is my rejoinder to Andy's comments.
The topics I will be discussing are:
1. The Fourteenth Amendment's Equal Protection Clause
2. Rights vs Privileges
3. What has God to do with it?
The Fourteenth Amendment's Equal Protection Clause
To anchor my position, I searched for types of human rights declarations which include marriage as an inalienable and inviolate human right. I couldn't find any within the US Constitution.
I did find a clause in the United Nations Universal Declaration on Human Rights, (the "UNHR") Article 16, which makes reference to marriage as a human right:
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
Article 16, unfortunately, does not elaborate further on whether marriage refers to men marrying women, or men marrying men, or women marrying women. Clause 1 would have been more precise if it had read as follows:
"Men and women of full age, without any limitation due to race, nationality, sexual orientation or religion, have the right to marry and to found a family...."
Clause 1 and 3 gives us a clue as to the intent of Article 16. The inclusion of the word "family" implies that the Purpose of marriage is the creation of a family and by deduction the procreation of children. We must conclude that since a family, as defined in 1945, was the primary purpose of marriage between a man and a woman, that the intent of Article 16 is to define marriage solely as the union between a man and a woman. At the time the UNHR was drafted the definition of marriage and family had never changed for millennia up until that time and therefore no reason existed to alter it.
How did the UNHR come about? In 1945, a committee of persons headed by Mrs. Eleanor Roosevelt, the wife of US President Franklin D. Roosevelt, wrote a special document which “declares” the rights that everyone in the entire world should have—named the Universal Declaration of Human Rights. Today there are 192 member states of the UN, all of whom have signed on in agreement with the Universal Declaration of Human Rights, including the United States.
Eleanor, incidentally, was known to have friends and colleagues with whom she organized on women's issues, who were lesbians, some of them in deeply committed relationships, and it was also widely rumored that she may have herself had a lesbian relationship. One would think that with her proclivity to champion women's (Lesbian) issues, she would have made provisions in Article 16 for same sex marriage. But, to have instituted same sex marriage during the Roosevelt administration would have been political suicide. Eleanor was probably sworn to political correctness by her husband, FDR, who had made certain, through his Gay-Sex Entrapment scandal in the Navy, that homosexuality would remain locked in a closet.
The Unites States Department of State is commissioned to oversee the protection of Human Right as declared in the UNHR. The introductory paragraph states:
"The protection of fundamental human rights was a foundation stone in the establishment of the United States over 200 years ago. Since then, a central goal of U.S. foreign policy has been the promotion of respect for human rights, as embodied in the Universal Declaration of Human Rights. The United States understands that the existence of human rights helps secure the peace, deter aggression, promote the rule of law, combat crime and corruption, strengthen democracies, and prevent humanitarian crises."
I find it rather hypocritical that we defer to the UNHR for redress on human rights issues around the world, but in our own backyard we do not defer to it on issues relating to the family which the Majority upholds.
In the UNHR we have a Condition Precedent which includes a definition of Marriage, a description of the Purpose of Marriage, and an incontestable description of the participants which make for the family unit. If someone was to contest the definition or seek redress, the definition would not have to first be created in order to construct an argument for or against it.
On the other hand, the United States Constitution (the "USC"), or its amendments - including the Bill of Rights - do not contain any language, make no provisions for, and do not define in any way, shape or form the concept of Marriage or Family. There is conclusive evidence that there is no Condition Precedent on Marriage or Family in the USC.
There is no Condition Precedent in the Constitution for space exploration or time travel, either. Why? Because these concepts were unfathomable at the day. Why were there no provisions for Domestic Relations? Domestic Relations issues were relegated to the States, as per the Division of Powers in the Tenth Amendment.
This is where we have a serious problem in invoking the USC on an issue which was then, and still is now the purview of the States.
Now, we turn to the Fourteenth Amendment, which was drafted in 1868 - seventy-seven years before the UNHR was drafted. The Fourteenth Amendment came about for what purpose? Certainly, at the time the institution of marriage was not a subject of debate and it was the domain of the States.
The Fourteenth Amendment was primarily concerned with the details of reintegrating the Southern
states after the Civil War and of conferring privileges and immunities to recently freed slaves.
The first section of the amendment aimed at revolutionizing federalism by granting all citizens equal protection under the law.
It stated that no state could “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.”
The wording "Nor deny to any person within its jurisdiction the equal protection of the laws” has special significance when applied to the rights of children, as we shall discuss later.
The Fourteenth Amendment was followed by a period of Reconstruction.
One legacy of Reconstruction was the determined struggle of black and white citizens to make the promise of the 14th amendment a reality. Citizens petitioned and initiated court cases, Congress enacted legislation, and the executive branch attempted to enforce measures that would guard all citizens’ rights. While these citizens did not succeed in empowering the 14th amendment during the Reconstruction, they effectively articulated arguments and offered dissenting opinions that would be the basis for change in the 20th century.
(Information excerpted from Teaching With Documents [Washington, DC: The National Archives and Records Administration and the National Council for the Social Studies, 1998] p. 40.)
By convention the US Constitution's Supremacy Clause (Article 6, Clause 2) supersedes the UNHR:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
But, to reiterate, the USC does not contain any language on Domestic Relations as does the UNHR's Article 16. Nowhere does the USC define marriage as an inalienable right. The USC reserves language for commerce, taxation, elected officials, and it affords us a Bill of Rights which protects us from the overreaching powers of government, but not a word about "family", "marriage", or "divorce". There is no Condition Precedent, and therefore, in my view, one cannot appeal to the Constitution for clarification on a matter which is not defined in the first instance.
Since the Constitution does not contain concise language on marriage and family (as does the UNHR), then no decision can be made on marriage or family, let alone same sex marriage, without: a) first revising the Constitution so as to define marriage and family; or, b) deferring to a superior document - to which we defer on matters relating to violation of human rights in other countries - the UNHR.
On this, I agree with Andy: The Constitution does require further scrutiny.
It seems rather obvious to me that an argument invoking the Fourteenth Amendment, which provided neither definitions nor provisions on Domestic Relations at the crucial period of Reconstruction, but which was intended solely for the purpose of appeasing the South and emancipating slaves, that such an argument is too specious and strained. It is grasping at straws were none are found.
Furthermore, if indeed the argument for a "suspect class" can be made by invoking the Fourteenth Amendment, then this line of reasoning opens wide the floodgates for other suspect classes we consider to be deviant and perhaps just as deserving of the same protections granted to the majority. These special classes would not necessarily seek equality rights in marriage, but an acceptance into the social fabric, as a first step.
Rights vs Privileges
Nowhere in the USC or the Bill of Rights is marriage mentioned as a right.
Here is the conundrum: If we acknowledge that marriage is a right as defined by the UNHR, then we must also acknowledge Article 16 of UNHR. And if we acknowledge Article 16, we must also acknowledge that by the prevailing definition of family in 1945 the family unit is defined as a man married to a woman who wish to procreate or adopt children.
But, let's suppose for argument's sake that the USC did define marriage as a right, as in the right to bear arms in the 2nd Amendment. Is marriage really a right, or a privilege?
If one must obtain a marriage license in order to enjoy marriage, then by virtue of the marriage license itself - ipso facto - marriage is a privilege. Pardon the Latin.
Can it be both a right and a privilege? If the pursuit of happiness is an inalienable right, and happiness presupposes marriage for the purpose of creating a family, then marriage is not necessarily a right but a pre-condition to happiness. I may have the right to be happy, but I can be happy only if I enjoy the privilege of being married. But in order to be married, I must prove to the State that I qualify to be married.
Marriage is not only a pre-condition for happiness, it also serves a loftier purpose. It is the pre-condition for the propagation of a well-adjusted human race. Some will argue that with artificial insemination anyone can be a parent these days, even gay couples. That may be so, but creating children and raising children are two different issues.
The original script which nature gave us (I could have said which God gave us, but let's aim my remarks to my atheist friends. I will say something about God at the end of my remarks) has worked quite well.
The script calls for monogamous unions between two heterosexual members of the species. To mess with it is to mess with the natural order of things. Which brings me to the "rights of children".
Studies show that children raised by heterosexual parents fare better than children raised by homosexual parents. (This other robust study was conducted by the Family Research Council). WHo is defending the rights of children?
Loving consenting couples should have the right to marry.
How many times have we come across that? It's a blank check. There are many consenting loving couples who want to get married and who represent some of the more deviant members of society. Do they not have the same rights to life, liberty and the pursuit of happiness as anyone else? If same sex couples can enjoy rights which the majority enjoys, then why can't they. Are they immoral? By whose definition? The Majority's definition? The majority, as we have witnessed by the courts overturning the Prop 8 popular vote, has now no voice.
We have entered an age when in matters of morals anything goes, as long as the minority can use the judicial system to overturn the wishes of the majority. We should ask ourselves: what purpose then, if any, does the majority play? If none, then why even vote on issues? Who determines what is "moral"?
Often, we hear that incestuous marriages should not be allowed for health reasons.
For health reasons?
And I am not advocating incestuous relations. I'm pointing out the hypocrisy.
Let's see, HIV remains the largest health issue facing the gay community. From 2008 to 2010, according to the Centers for Disease Control and Prevention (CDC), new HIV infections remained steady overall, but rose a startling 22 percent in young gay men. At the current rates, more than half of college-aged gay men will become HIV-positive by the age of 50.
Do we see a need, for purely health reasons, to restrict same sex marriages, at least for men? Where are the dissenting voices? Where is the outcry? What am I missing here?
It's seems to me that same sex marriage is more of a death sentence than a privilege or a right.
Yes, people in various classes have the right to love each other, and to live under common law, or as joint tenants, or as partners in a domestic partnership. There are various ways to experience companionship and love in life, but leave the raising of children to heterosexual partners, especially if evidence points that children grow to be more well-adjusted in heterosexual families.
If studies show that children are better off being raised by heterosexual parents, who is protecting the rights of children?
This brings me back to licenses and privileges.
In my view marriage is a privilege and licenses should not be granted at sight without first qualifying the prospective spouses. Beyond meeting the legal requirements of age, kinship, etc., spouses should also be able to demonstrate sound character, and in cases where they are remarrying following a divorce, they should have undergone some form of therapy or counselling and be certified competent.
I would also argue, borrowing from DUI laws, that individuals with one too many divorces should not be permitted to remarry, or perhaps be allowed to remarry with some restrictions. Perhaps, a renewable temporary marriage license for 3-5 years would be the answer, to avoid costly divorce proceedings.
[This is where I shoot myself in the foot, as I am admitting to my five marriages. My co-author, Lorie, is on her seventh marriage. With her I think it's a matter of setting new records.
You know you've been married once too many times when you go to file your divorce papers at the courthouse and the clerk greets you by your first name].
Andy, you present a cogent argument,
if and only if marriage was an inalienable right, and if only the Constitution contained definitions and provisions for marriage. The founding fathers left Domestic Relations to States. Once the Constitution is revised, the Fourteenth Amendment would be more relevant.
A lot of people would love to fly an airplane. Not everyone can qualify for a pilot's license. A lot of people would love to have a family. Not everyone qualifies for either marriage or parenthood.
Charles Manson may want to be a surgeon, but that will never happen.
There are over 40,000 licensing bodies in the United States. Licenses are granted based on a candidate's qualifications.
Perhaps, special domestic union/partnership licenses could be issued to spouses with no children, polyamorous relationships (after all,
love is love no matter how many join in) or same sex couples.
If it is a matter of granting couples the same government benefits and survivorship rights as heterosexual couples, then this can be done without invoking the word marriage in the license which should be reserved exclusively for heterosexual couples who carry the burden of raising adopted or their own biological children.
An argument along those lines is made by
Rob Natelson.
Let's list all the wrong (but real) reasons some people use to get married - reasons they would never admit to, unless they were polygraphed:
1. A green card.
2. A tidy divorce settlement. Some people are that conniving. They scheme years ahead.
3. An inheritance. The old man (or woman) they marry is about to kick the bucket
4. Private Health insurance.
5. Sex. In groups where sex before marriage is frowned upon, marriage is often a licence to have sex. Some would argue that marriage has always been a "sex-for-money" proposition.
6. Companionship in one's old age
7. Government benefits.
We can think of other reasons. Polygraphing would be an inexpensive form of filtering those who are marrying for the government benefits and those who are marrying for real love. Since intent (love) is the card everyone likes to use to obtain a marriage license, let's separate the pretenders.
Under a new Department of Domestic Unions, (borrowing from the Department of Motor Vehicles) at the top of the list we could have Marriage Licenses issued to couples who are most adept at creating a family (namely, heterosexual couples), then perhaps, Civil Unions, for those wanting to enjoy government benefits in a same sex union, and so on.
A Marriage License would be a permanent license, not subject to renewals, eligible to be solemnized in a church, in contrast to a Civil Union. This would alleviate the embarrassing position the churches find themselves in loving their flock but not being able to marry same sex couples.
What has God to do with it?
If you are an atheist please read no further. This is not for you.
Without going into a long scriptural chase, the big picture is the following:
God loves everyone. God loves us enough to allow us the exercise of our free agency.
We lived with God before coming down here. This planet provides us the contrasts of pain/pleasure, right/wrong from which we can learn. Earth is like a playground. We wanted to come and play and learn so that we could make choices and experience this next leg of our journey. We left God's presence and willingly came down here to play. Each one of us brought with us our character molded from long ago. Some choose to do drugs, others choose to exercise, others choose to contribute for the good of society, still others choose to look benefit themselves at the expense of society.
The general (Satan) wants to restrict our free agency. Notice how inmates don't have many rights or privileges? Some choices do that to a person. We are free to choose our actions, but not their consequences. The general is great at disguising falsehoods as truth. He is the great deceiver. He can appear an an angel of light. He makes great counterfeit cases. His uses sugar-coated cyanide candy to prey on our gullibility and weaknesses. The insidious thing about it is that he lets time pass by before we feel the effects of our wrong actions, so as not to make the connection.
Retracing our steps we can figure out how we came to be infiltrated and surrounded by evil influences. The demonic is real. There are all kinds of ways to open portals to the demonic. Research it.
God tells us ahead of time if our choices will limit our free agency, but still lets us choose. This was demonstrated in the garden of Eden. The tree of knowledge was forbidden to Adam and Eve. God warned them they would die if they partook of the fruit. They did, and he still loved them, but by virtue of their decision they had to suffer the consequences of their actions and leave the garden.
This is how it works. Action, reaction. Call it Karma, call it Justice or by whatever other name. We make a mistake, we learn and we adjust our course; or we do not, and keep bashing our head against the wall. The Atonement is another topic I won't even broach here.
I am painting the canvas of life with very broad brush strokes.
Have you seen the movie Noah? I advise you take a look at that movie. The conditions prevalent during Noah's days are recurring now in our day. It has been prophesied that they would in the last days. What does that mean for you and me?
God looks over the playground and is saddened at the violence and abominations. There comes a point when there is nothing else He can do to fix the problem than to wipe the playground clean, and start all over from scratch. It's usually through an extinction level event. Then, he resets.
Well, enough said.
You may want to read this
article which discusses this further.
All this has been foreseen by prophets of old. The new morality is in fact a very old immorality in different wraps. I am (in a morbid way) delighted that same sex marriages will be legalized. It is possibly the prelude to the Second Coming.
This is not fearmongering. Compared to the fearmongering the "Too Big To Fail" banks slammed us us with this is only a rational factual observation of how empires and civilizations rise and fall.
The calm before the storm.
