A Firebell in the Night

Column No. 2 By Steven Jonas, MD, MPH -  March 4, 2004

As is well known, a so-called "Gay Marriage" Constitutional Amendment has been introduced into the Congress.  It is supported in full voice by the leader of one of the two major political parties (who just happens to be the President).  What has not yet been widely recognized is that with its introduction, the United States has entered into what will in my view become the most serious Constitutional crisis since that which eventually led to the Civil War.  This essay will present in outline form the principal reasons why I consider this to be the case.  Over time, I hope to be returning to consider the issues in some more detail, as will, of course, many other commentators, over time.

At present, most observers considering the Georgite proposal for a Constitutional amendment to ban "Gay Marriage" from a critical perspective are using one or more of the following arguments against it: that it violates "States Rights;" that it represents the Politics of Distraction; that it's not "fair," "just," "moral," etc.

I have serious problems with the "States' Rights" argument as one on which progressive forces should rely.  Its origins lie in the pre-Civil War political conflict over the institution of slavery and the post-Civil War conflict over legal segregation of African-Americans in the South.  Thus, for most of our history it has been used as a basis for fostering white supremacy, racial discrimination and other reactionary policies.  Furthermore, it has often been criticized for being faulty in terms of what the Constitution actually says about the matter.

As a reader will see below, certainly I am in full agreement with the second and the third arguments presented above.  However, I will not consider any of these arguments further here.

I will consider a list of other issues and arguments that I think are rather more important.  They have to do with the Constitution itself and what the adoption of this amendment would mean for it and our future as a nation.  Indeed even were it never to pass in its present form, its introduction, and its support by a President who took an oath of office to uphold the Constitution, are chilling, one might say terrifying, events for persons who revere the Constitution and the values that it, in its present form, represents.

As I said above, these arguments are here presented in outline form, not necessarily in order of importance. While I intend to deal with one or more them over time, I hope as well that others will do the same.

A.        Marriage in this country is bimodal.

There is religious marriage and there is civil marriage.  In promoting their position, without at this time saying so openly, the Republican Religious Right is using as justification for the amendment the religious dictums of a particular English translation of the Bible (from Latin from Greek and for the Old Testament from Hebrew from Aramaic), known as The King James Version.  (It is, among other things, a notoriously homophobic text.) In doing so, they want to define all marriage as a solely religious matter, with their particular religious view being controlling.

But in the US, marriage is also a civil institution, covered by civil law.  Many people now get married without any religious aspects to their wedding.  And for any marriage to be legal, wherever and by whoever performed, a civil license is needed to make it legal. The provisions of that license are defined in the civil law of the jurisdiction in which the marriage takes place.  When two people get married in the civil realm, they take on certain responsibilities and obligations that are defined by law.  Thus there clearly is a civil institution of marriage that has nothing to do with religion.

Nothing prevents any church now from saying that it will not perform same sex marriages.  And that is how it should be, under the 1st amendment.  However, because it defines marriage in the religious context, this amendment would have the effect of eliminating civil marriage in the United States, making it a purely religious matter.

Under the Constitution as presently written, since marriage does exist in the civil as well as the religious realm, it is the equal protection clause that the 14th amendment applies to the states that indeed does entitle any two people to get married in the civil realm in the state in which they reside.  The Republican Religious Right knows this very well.  When they (including Bush) attack “a few judges,” what they are really attacking is the Constitution itself.  For they know that, unless they get this amendment passed, or unless Bush gets re-elected and gets to pack the Supreme Court with Radical Religious Rightists, even this Supreme Court will eventually rule all of the existing state anti-gay marriage laws unconstitutional.

B.   The issue is not one of "States' Rights," that is "Rights" that the states can independently wield against Federal authority outside of the confines of what is granted to them by the Constitution.

However, it is very much an issue of the historical "Police Powers," which arose centuries ago in English law.  The Police Power covers such local government functions as policing, sanitation, pure water supply, zoning, education, and yes, civil marriage.  While it is not specifically mentioned in the Constitution, it is generally considered to be among the body of powers delegated to the States by the Tenth Amendment and in historical practice has been treated that way since the earliest days of the Republic.  This amendment would remove authority over civil marriage from the states.  What local authorities might be next, one might ask?

C.   The Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Judge Bork refers to the Ninth, very inconvenient for reactionaries and Right-Wing “strict constructionists,” as a "blot upon the Constitution."  The 9th is very much in play when it comes to the matter of same-sex civil marriage.

Actually, I am a “strict constructionist” myself. I take such Constitutional elements as the (largely ignored) Preamble (which provides a very broad statement of purpose for the Federal government) and the Bill of Rights very seriously and literally.  I also consider that the ambiguity so widespread in the Constitution was put there purposely by the Founders that it was their Original Intent that within the limits set by the specific parts, the Constitution could grow and change with the Republic and its people. One must note that judicial review itself, which the Right used to select the current President, is nowhere to be found in the Constitution.  It was an invention, an invention based on legal logic to be sure, but an invention nevertheless of Chief Justice John Marshall.

D.    The Georgites have been attacking the whole concept of an independent judiciary since they took office, both directly and by appointing to the bench judges who do not believe in it, but rather believe that the judiciary should be subservient to the Executive Branch (as long as that branch is in the hands of the Right Wing, of course.)

When a reactionary Court was able to gut large parts of the New Deal, in opposition to the will of the people, the Right was all for that.  Bush has made a point of linking his support of this amendment to the role of "a few activist judges."  "Activist judge" in the Georgite vocabulary means "any judge who renders an opinion on the meaning of the Constitution that does not agree with ours."

E.    The introduction of this proposed amendment also recognizes, as I said above, that unless they were to get full control of the Supreme Court, that that body, reading the 14th, would eventually have to rule that gays are entitled to marriage, not just “civil union,” under the (civil) marriage laws of each and every state.

The original Constitution discriminated against one group of people.  Otherwise, it promoted rights, not denied them.  It took a Civil War to eliminate that written discrimination and then another century of struggle before the meaning of the 15th Amendment, the Original Voting Rights Act, was actually put into enforceable law.  This amendment would reintroduce into the Constitution formal discrimination against one group of people, based on who they are, what their nature is, as people.

F.    While many Republicans are racists, many are not.

Nevertheless, the Party does have its Southern Strategy that is based in racism.  However, that force is gradually losing its political utility, especially as the nation becomes darker skinned and more multi-cultural. Since the time of the Great Depression and the New Deal, and now especially that the Cold War is nothing but a memory, the Right has relied principally on racism for gaining and maintaining power.  It is clear that certain Right-wing forward planners have recognized the need to target a new group around which discrimination could be rallied for political purposes, as it has used racism since 1964.  Who better for their purposes than the homosexuals?

As none other than Newt Gingrich said in 1985; when addressing the issue of AIDS (The Freedom Writer, “Inside Glen Eyrie Castle, August, 1994, p. 1): “AIDS is a real crisis.  It is something you ought to be paying attention to, to study.  AIDS will do more to direct America (sic) back to the cost of violating traditional values, and to make America (sic) aware of the danger of certain behavior than anything we’ve ever seen.  For us, it’s a great rallying cry (emphasis added).”

G.    This amendment could easily be used as a basis for passing all kinds of homosexual discrimination laws.

One could see a reactionary, Georgite Supreme Court, say with Justice Scalia as Chief, using this amendment and its "original intent" as they would interpret it, to justify such laws under the Constitution, simply because it (literally) discriminates against a particular group of people, based on who they are.  Just see Dred Scott.

Since the basis of the definition of marriage it uses is religious, not civil, by putting it into the Constitution, the "Wall of Separation," heavily under attack from the Republican Religious Right for the past 40 years, would be essentially demolished.

Again, by its mere introduction the Republican Religious Right has signaled the beginning of its formal assault on that Wall.

H.     Bush said that the definition of "marriage" is based on its ''cultural, religious and natural'' roots.

Not that we could fairly expect this dumb and ignorant man to know any better, but it is of course simply not true that the definition of marriage is historically immutable.  In the 19th century, it meant that the woman became the property of the man and that her property did too.  In the Middle Ages there was "doit de seigneur," the right of the feudal lord to have the first night with any woman any of his male serfs married.  Perhaps they are thinking about re-establishing that, the qualification for "seigneur" status to be something like a minimum of $100,000.00 per year to the Georgite campaign fund.

I.       I don't want to go too far out here, but this could be the first step on the road to outlawing homosexuality.

The Republican Religious Right thinks that it is a matter of choice. As Trent Lott once told us when he was Republican Majority Leader and the third leading Republican politician the country, it is after all a sin (and that because the Bible, as the particular translation that Lott reads --- one must ask, did God speak English, a language not around when he supposedly laid down the “inerrant” text of his thought --- says so).

Finally, in Nazi Germany, before the Yellow Star came into wide usage following the passage of the Nuremberg Laws in 1935, known homosexuals (other than those in the upper reaches of the Nazi Party such as Ernst Roehm, Commander of the SA until his murder by Hitler for political, not sexual discrimination reasons, on June 30, 1934) were required to wear a Pink Triangle.

I believe that this battle must be fought on these grounds, not simply on fairness or state rights.  This one has meaning for everyone, because if the homosexuals are first, who could be next to have the rights that they presently under the explicit elements of the Bill of Rights, under the 9th, and under the 14th eliminated?  Why, for example, could the next step not be an amendment defining marriage solely as a religious institution and perhaps specifying which religion(s)?

Let us not limit the argument simply to the rights of homosexual American citizens, as American citizens (which argument should of course be used as well).  Let us remember the words of Pastor Nimbler in Germany which went something like: “In Germany they first came for the Communists, and I didn't speak up because I wasn't a Communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics, and I didn't speak up because I was a Protestant. Then they came for me - and by that time no one was left to speak up.”

Let us not make the same mistake the pro-choice movement made years ago, by arguing that the issue was a woman of child-bearing age's right to choose her desired outcome of pregnancy, until the time of fetal viability.  The primary issue then, as now, is the right of everyone to his or her own belief as to when life begins.  This is an issue for everyone who wants to remain living in a (relatively) free, but definitely not theocratic, country.

In 1820, an Act of Congress called the Missouri Compromise permitted the expansion of the institution of slavery beyond its original boundaries.  Thomas Jefferson referred to that Act as a “Firebell in the Night,” warning of future bloody conflict.  For our time, the mere introduction of this Amendment, a rallying cry for the Republican Religious Right with enormous implications for the nature of our society, with all of its grave potential consequences for the future of Constitutional democracy in the United States, supported as it is by the present President of the United States, presumably to become policy for his Party indefinitely, regardless of the results of the next Presidential election, should be regarded as well as a “Firebell in the Night.”