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Current Battle: Election 2004






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Sunday, May 16, 2004

Battle Gay Marriage - Iron Blogger Democrat - Opening Arguments

It's hard to know what to write in this opening statement, as it seems to me the correct responses to all of the Chairman's questions are obvious, one-word answers:

Is marriage a sacred institution to be protected by Constitutional means if necessary?
No.

Is the theory of civil unions a mere re-hash of 'separate but equal'?
Yes.

What role does the separation of Church and State play in this matter?
Big.

Are civil unions enough for gays to be recognized under the law, or can only legally recognized marriage grant gay couples true equality?
Marriage.

So, I can go now, right? Wait for the Challenger to make his untenable arguments and then respond? No? You want more? Fine.

The Constitution of the United States, as well as state constitutions, is designed basically to do two things: Limit the scope and power of the government, and grant and extend rights to individuals. An amendment to the Constitution prohibiting gay marriage does exactly the opposite on both counts; it limits the rights of individuals and extends the power of the government into a realm where it does not belong. The Constitution does not now and should not ever protect cultural "institutions."

Civil unions, implemented successfully in Vermont, addressed one small aspect of the problem, which is that heterosexual couples can and do have benefits, rights, and responsibilities granted to them under a state-recognized contract that gay and lesbian couples, whatever their level of commitment or willingness to enter that contract, do not have. Vermont's law makes it easier for gay and lesbian couples to claim many of the benefits, rights, and responsibilities. But can we, in good conscience, create second-tier citizens?

It is in religion that most opponents of gay marriage find their arguments, from the protesters outside the Massachusetts statehouse to the conservatives pushing anti-hay marriage laws in states across the country. Yet we must remember that the United States is a secular country. As much as many Christians want to believe we are a Christian nation, we are not, and Biblical proscriptions against gay relationships must not drive law.

Other arguments against gay marriage--marriage is for producing children, and that a home with a mother and a father is best, for example--put an undue and unequal burden on gays and lesbians: The state does not ask heterosexual couples if they plan to have children before granting marriage licenses. The state does not take away the children in a divorce to place in two-parent homes. And the research about how well children of gays and lesbians do is a worst inconclusive and at best encouraging. In a survey of the available research last year, the American Psychiatric Association concluded,
Overall, then, results of research to date suggest that children of lesbian and gay parents have normal relationships with peers and that their relationships with adults of both sexes are also satisfactory. The picture of lesbian mothers' children that emerges from results of existing research is thus one of general engagement in social life with peers, with fathers, and with mothers' adult friends--both male and female, both heterosexual and homosexual. Studies in this area to date are few, and the data emerging from them are sketchy. On the basis of existing research findings, however, fears about children of lesbians and gay men being sexually abused by adults, ostracized by peers, or isolated in single-sex lesbian or gay communities are unfounded.
In short, the state has no compelling reason to prohibit gay marriage. Enshrining such bigotry in the Constitution, at the state or federal level, is wrong. But just to make it clear, let's do a little thought exercise. The Chairman, in announcing this Battle, invoked Plessy v. Ferguson and Brown v. Board of Education.

In 1896's Plessy, the Supreme Court of the United States ruled that the doctrine of "separate but equal" is okay. "A statute," wrote Justice Henry Brown, "which implies merely a legal distinction between the white and colored races--a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color--has no tendency to destroy the legal equality of the two races." And segregationists all across the country breathed a sigh of relief.

But what did not happen in the years after Plessy that could have happened is the real story. Segregationists across the country could have begun to worry that the court's precedent would not always stand. "What would happen," segregationist lawmakers might tell constituents in a fund-raising letter or stump speech, "if some crazy liberal judges came along some day and decided that 'separate but equal' was no longer okay? Next thing you know, some crazy liberal judge will be telling us that we have to let our pure white children go school with Negro children, or that our pure white daughters can marry Negro men! The only way to stop this from happening would be to enshrine it in the Constitution!"

And with that rallying cry, imagine if states, maybe even the federal government, wrote "separate but equal" into their constitutions. Perhaps the sixteenth amendment would be segregation, not income tax (a double score for some conservatives!).

Imagine, then, sixty years later (and fifty years ago this month), what would happen when plaintiffs from five states banded together to challenge the "separate but equal" education system in the case we know now as Brown vs. the Board of Education. Earl Warren, writing for a unanimous court in 1954, said that segregated schools served no purpose but to push blacks to be lower-status citizens, and therefore violated the fourteenth amendment.

But with a sixteenth amendment saying that "separate but equal" is okay, then Warren would have had no constitutional basis for his ruling. Those crazy liberal judges on the Warren court would have had no way to stop segregation. We would have segregated schools--and more--yet today. Instead, our government did exactly what it should: The legal system worked, and the civil and equal rights of individuals eventually prevailed.

Many now believe we need constitutional protections now in order to stop those crazy liberal judges of the future--or of today, literally, in Massachusetts--who will declare gay marriage legal. And they are trying make political hay out of it. One even said in his State of the Union address, "Activist judges [. . .] have begun redefining marriage by court order, without regard for the will of the people and their elected representatives. If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process."

Roberta Combs, president of the Christian Coalition of America, adds that "judicial tyranny in this country has gone too far. Congress and the state legislatures need to fulfill their constitutional responsibilities and stop these runaway liberal judges."

History, of course, has told us that the Warren court made the right call on segregation, and it's hard even to imagine that anyone fifty years ago would have been on the other side of the issue. I firmly believe that history will write that we are on the right side of this issue, too. But we will never get the chance to find out if these modern-day segregationists get their way and enshrine bigotry in the Constitution.

So even if you don't support gay marriage, you have to see that we must not mess with the Constitution. Instead, we must let the legal system work. I have confidence that before long, we will see the equivalent of Brown for gay marriage. The segregationists hued and cried then, and gay marriage opponents will do so now. But in the end, protection and extension of rights will win the day.

Respectfully submitted,
Jay Bullock, Iron Blogger Democrat
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