29 October 2008

Constitutionality and the fundamentalist interpretation of the bible

Today is "write about Proposition 8" day in the world of the blogs. Here is my contribution.

When the nation was founded, the leaders quickly learned that they needed to justify their actions (revolting against the legal government) to the majority of the colonists who did not support the revolt. In a masterpiece of propaganda, they came up with The Declaration of Independence. Most Americans look to that document as the establishment the United States of America. It is a brilliant document.

In that document, we find the words “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Unfortunately, that phrase did not make it into the Constitution of the United States. Because it does not, it is not enforceable as law. It fell to the individual states to guarantee those “unalienable rights.” So, we have to turn to two U.S. Supreme Court decisions.

In Loving vs. the State of Virginia, an interracial couple sued the state. They had been married and yet arrested under the Virginia laws. In the decision, in favour of Loving, the Supreme Court said:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. [Emphasis added.]

Although the court was dealing with interracial marriage, the decision contains that one phrase that is and will be the precedent for decisions (and the argument for) on same-gender marriages. The Loving decision is of monumental importance.

The decision also uses the Fourteenth Amendment which states:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state 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. [Emphasis added.]

When the case of same-gender marriage is examined, honestly and without bias (which is hard to do) the facts are that by denying marriage to any portion of the citizens the government is denying people equal protection to all citizens.

Married heterosexuals enjoy enumerable benefits from the state and Federal governments. These rights range from visitation and property to income tax advantages. These benefits are denied to all other portions of society. Interestingly, the IRS does not recognize the legal marriages of same-gender couple in that they cannot file as married people. That is additional denial of equal rights.

Using a strict scrutiny, the current marriage laws set up a classification of persons who are favoured by the government The govenment must show a compelling and overriding interest for creating classifications of people. In the case of same-gender marriage, the state cannot prove its case except on religious grounds.

By doing so, the state/federal government is establishing a religion, prohibited by the First Amendment which states

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. [Emphasis added.]

The sole objection to same-gender marriage is a religious objection. That is irrefutable. By upholding this religious viewpoint (held by some churches but not by all), the government is establishing a religion.

In Zablocki v. Redhail, the State of Wisconsin was sued by Roger Redhail who was denied a marriage license because he was in arrears on child support. (Redhail had fathered a child while in high school and had no means to provide child support as ordered by the court.) Redhail sued.

Justice Marshall wrote for the majority in a 5-3-1 court holding. Affirming the judgment of the District Court, Marshall concurred with the District Court's reading of marriage being a fundamental right, relying on Loving v. Virginia (1967) and Griswold v. Connecticut (1965).

Additionally, Chief Justice Burger joined with Justice Marshall's opinion, and concurred separately to note that the Wisconsin statute was an "intentional and substantial interference with the right to marry.”

Here are two US Supreme Court decisions that state the right to marriage is a “fundamental right” of all citizens.

When religion is removed from the issue of marriage, there is no doubt that in the United States marriage is a fundamental right and the States can show no compelling interest in denying marriage to all citizens.

But the journey is not over, regardless of the outcome of Tuesday’s vote in California. Injustice will still be ubiquitous.

In his last public appearance, LBJ, speaking of his Great Society and the Civil Rights struggle made a remarkable prophesy. I’m going to give LBJ the last word in this post.

If courage remains our constant companion, and if our efforts continue, and if our will is strong, and if our hearts are right – then my fellow Americans, I am confident we shall overcome.