In the last two days the eyes of the country have focused on the Supreme Court as history was in the making. In back-to-back court cases heard by the Court dealt with the issue of gay marriage. One about a state’s right to define marriage as one man and one woman and the other was whether the Federal Government can do the same for the purpose of law and policy.
There are legal issues of standing with the court on who is arguing the points. Both California in the Prop 8 cases and the US Justice Department in the DOMA case have opted out of arguing it. I will leave that for legal scholars to discuss, I want to talk about this on the issues and the real life implications.
First the California case. California is a state the often uses referenda to decide all kinds of policy. When a law banning gay marriage was overturned the state turned to a state constitutional amendment to set it in law. The 9th circuit called the amendment a violation of the US constitution and so the Supreme Court was the only other option for the anti-gay marriage crowd. Basically the question facing the court is can California amend their constitution to define marriage as between one man and one woman? The court could decide with a narrow, a broad or no result. No one knows how they are going rule. But there are questions we can ask in dealing with this. For example, there is a class of evangelical Christians who go on television and preach that sending money to hem will bring about God’s grace. Often preaching not only from theological positions but political ones, they tend they get headlines and are seen as speaking for evangelical churches. What if mainline evangelicals rallied others to outlaw broadcasts in a state? When found to be unconstitutional under the state constitution there is an amendment to that state’s constitution that allow banning broadcasts of these churches. The question could be seen as a 1st amendment issue, both free speech and religion. So the US Supreme Court would be the only place to find resolution. Thus we have the same situation with gay marriage. This idea that states can make certain marriages second class is a constitutional issue. Since marriage is attached to many many rights and privileges in this country that are defined by law there is a real equal protection issue at play. I think we have to be careful when certain rights can be voted away by ballot initiatives. I wish the court would put the hammer down here on such things. Making the banning of gay marriage unconstitutional will never force churches and other houses of worship or their clergy from performing weddings they deem inappropriate (just as today) since religious marriage is not at play here. Clergy and faith communities today deny certain types of marriage all the time. No one can sue a synagogue for not marrying non-members, non-Jews or insincere couples. Or they could but they would lose bad. The court has a chance to do big things, or they could let it be, but if they do that, in California Prop 8 would be considered unconstitutional by the 9th circuit’s ruling. So at least the people of California will have the freedom they seek.
DOMA, the 1996 Defense of Marriage Act was a bad decision when it was enacted. It was basically an attempt by the Federal Government to stop it from having to recognize gay marriages even though no state had been making them legal. In real world application, the case looks at a legal married woman who lost her partner of 40 years had to pay more than $300,000 in taxes that would have not occurred if their marriage was recognized by the Federal government. But this is just one example of what DOMA does to families and is worse today as 10 states with more to come will create legal marriage for gays and lesbians. One group that weighed in was the US military. Recently the lift of the ban of gays in the military (there have always been gay people in the military they can just serve openly now) means that married gay people are in war zones. When a warrior dies there is a mechanism to help the family, starting with notification by the military. Married gays do not get this benefit since the military has to follow this law that forbids them from recognizing gay people as married. Seriously, everyone knows it but can’t formally recognize the marriage. Think about that for one minute, your country has a law that stops a dead hero’s family from getting benefits including the simple formal notification. How is that not as heartless as Westboro Baptist Church? But what is more there are tax benefits to getting married that go unrecognized by the US for legally married couples, but on new year’s eve a man could meet a woman at Spearmint Rhino at 8pm, drive to a drive-through chapel off the strip where a man dressed like a Klingon officiates a ceremony without you leaving the car, (the organist a Ferengi) and be married by midnight. Even if they divorce by January 2nd, they can file taxes jointly for the previous year. How do two loving people being married destroy what some call traditional marriage (the argument that led to DOMA) and this kind of Vegas marriage doesn’t? I don’t know.
We are living in interesting times. I think by the time I have grandchildren gay marriage will be seen as normal. But right now we have to have these silly arguments. Thankfully we are seeing conservative leaders seeing this issue as one of rights for all. We move forward slowly but we are moving forward. The irony is not lost on me that this is the week of Passover. This year we are still slaves, perhaps next year we will be free.