Columns Nos. 99, 100 By Steven Jonas, MD, MPH - April 2, 9, 2006

Welcome back everyone.  We at The Political Junkies are delighted to be back and we hope that you, our readers, are happy to have us back.  Much has happened politically during our computer-tech enforced absence, but much has remained the same.  Among the latter is the fact that the Republicans, even when they disagree among themselves on a policy issue (a rare event, to be sure), do their very best to raise policy issues that are far from the most important on the national agenda in real terms.  However, those chosen by the Republicans do serve a very important function for them: Distract, Defer, and Diminish the focus of the public’s attention on the most critical issues of the day: the Georgite War on Iraq, the Georgite War on the Constitution, the Georgite-driven ever-expanding national debt and deficit, the ever expanding loss of living wage jobs in the United States, the ever-widening gap between rich and poor, the impending Global Warming catastrophe, and so on and so forth.

This month’s 3-D’s issue is immigration.  Sen. Frist has already informed us that the 3-D’s issue for June will be the so-called “Gay Marriage Amendment.”  I have dealt briefly with the immigration problem, its real causes, and only real solution to it in my TPJ column of January 12, 2006 that contained reflections on my then recent trip to Mexico.  (That solution, which centers on the repeal of NAFTA is, of course, totally unobtainable politically, since its original passage was championed by Pres. Clinton and his DLC-Democrats, to say nothing of most Republicans.)  In this present column and the next, I look at the next Republican 3-D’s issue.  It must be understood that these issues are very important for Republicans.  For only if they can manage to keep the political agenda off the major problems facing the country and their responsibility for creating them, maintaining them, and making them worse, can they continue to stay in office (without fixing elections all over the place, of course, but that’s another story).  And so to the subject at hand.

As I said back in December, 2005 when I wrote the primary text for this column, my second column for The Political Junkies appeared on March 4, 2004.  The topic was the so-called “Gay Marriage Amendment” (in reality the Homosexual Discrimination Amendment).  I believe is going to be leading with this one in the next session of Congress.  It will be one of their two domestic wedge issues (the other being immigration of course --- Fox”News” Channel has already given that strategy away) leading into the 2006 Congressional campaign.

Thomas Jefferson used the term “Firebell in the Night,” warning of future bloody conflict over the institution of slavery, in referring to the Missouri Compromise of 1820. Among other things, it allowed for expansion of the Peculiar Institution beyond the borders of the original slave states.  I believe that with the “Gay Marriage Amendment” we are now seeing another “Firebell in the Night.”  I believe that the issue is so important that it is worth revisiting.  (Further, the number of people who see my writings each week is significantly larger now than it was back in March, 2004.) By the way, if you think that my columns are long now, you should have seen them back then!  So I have divided the original into two sections, appearing this week and next.

The 2004 Republican Platform calls for the adoption of the so-called "Gay Marriage" Amendment.  It is supported in full voice by the President as well as the RRR Congressional leadership.  There are many, within and outside of the Congress, and certainly not just in the homosexual community, who are opposed of course.  At present, most observers considering it 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 the legal segregation by state law in violation of the 15th Amendment (the original Civil Rights Act) 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, a weak Federal government in the economic realm, and other reactionary policies.  Furthermore, as used politically, the doctrine has often been criticized for being faulty in its reasoning in terms of what the Constitution actually says about the matter. Thus, I feel that it is a weak reed to lean on.  As the 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.

My primary focus is on the Constitutional aspects of the matter, which are vital in their own right but also can be useful politically. My arguments 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 the amendment 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.

I.        Marriage in this country is a bimodal institution.

In promoting their position, not always 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 Latin from Greek from Aramaic from Classical Hebrew), known as The King James Version.  (The text they use is, among other things notoriously homophobic.) In so doing, they want to define all marriage as a solely religious matter, with their particular religious view of “marriage” as a social institution that involves two members of the opposite sex only being controlling.

However, even if one believes that what the RRR says the Bible says about any subject should or should not become part of the law in our nation, it happens that in the US marriage is also a civil institution.  It is covered in considerable detail by the civil law in each of the 50 states.  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 required to make it legal. The provisions of that license are defined in the civil law of the jurisdiction in which the marriage takes place.  Furthermore, when two people get married in the civil realm, they take on certain responsibilities and obligations concerning both the marriage and its potential dissolution that are defined by law.  Thus there clearly is a civil institution of marriage that has nothing to do with religion.

Presently there is nothing in the Constitution or the law that prevents any church from taking the position 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.  Finally, here, since marriage presently does exist in the civil as well as the religious realm, under the Constitution the “Equal Protection” clause of the 14th amendment indeed does entitle any two people to get married in the civil realm in the state in which they reside.  (Sect. 1 “No State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.”)   The RRR knows this very well.  When they attack “a few judges” for holding that gay marriage is required under the Constitution, what they are really attacking is the Constitution itself.  For they know that, unless they get this amendment passed, or unless Bush is able to finish packing the Supreme Court with Republican Religious Rightists, even this Supreme Court will eventually rule all of the existing state anti-gay marriage laws unconstitutional.

II.                   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.

The issue is very much one of the historical "Police Power," 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?

III.                  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 (you remember him, Scalito before there was either one of them) likes to refer 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, as regular readers of this column know, I am a “strict constructionist” myself. (See my column TPJ 75, Nov. 8, 2005, “Let’s Hear It for Original Intent.”) 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.

On reading the plain language of the Constitution it becomes clear that it was their Original Intent that within the limits set by its specific parts and its specified requirements for actions and non-actions, 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 and his like-minded colleagues on the Court at the beginning of the 19th century.  And so, in addition to the specifics of the 14th, we have the 9th, which disposes of the argument that just because a given right is not specifically mentioned in the Constitution, it does not, to be defined to be sure, reside with the people.

IV.                The Georgites have been attacking the whole concept of an independent judiciary since they took office.  They have done this 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.)  (See my Schiavo Case columns, especially those of April 14 and 21,2004.).

When a reactionary Supreme Court gutted large parts of the New Deal back in the 1930s, using a specific interpretation of the vaguely written Interstate Commerce Clause, in opposition to the “will of the people,” the Right was all for that (and still very much is).  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."

V.                  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, the African-American slaves (and did not recognize the existence of another, the Native Americans).  Otherwise, it promoted rights, not denied them.  It took a Civil War to eliminate that original written discrimination and then another century of struggle before the meaning of the 15th Amendment, the Original Voting and Civil Rights Act, was actually put into enforceable law.  This new amendment would reintroduce into the Constitution formal discrimination against one group of people, based on who they are, what their nature is, as people, not anything they might have done that violates laws other than those on the books that already discriminate against homosexuals.

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

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 on racism as its base for gaining and maintaining political power. With the political utility of racism possibly diminishing for the short term, it is clear that certain Right-wing forward planners have recognized the need to target a new group against which discrimination could be rallied for political purposes.  Who better for their purposes than the homosexuals?

In 1995 none other than Newt Gingrich said, 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).”

VII.  The demolition of the Wall of Separation between Church and State

One could see a reactionary, Georgite Supreme Court using this amendment and its "original intent" as they would interpret it, to justify such laws under the Constitution.  They could do this simply because the Constitution would now (literally) discriminate against a particular group of people, based on who they are, using a certain set of religious criteria.  (Just see the Dred Scott decision, the only one that the strict constructionist Chief Justice Roger Taney felt he could make under the Constitution as then written.)  Since the basis of the definition of marriage the amendment uses is religious, not civil, by putting it into the Constitution, Jefferson’s "Wall of Separation" would essentially be demolished.  Again, by its mere introduction of the amendment the Republican Religious Right has signaled the beginning of its formal assault on that Wall.

VIII.             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 "droit 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.

IX.                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 holds that being a homosexual is a matter of choice.  Focus on the Family’s Jim Dobson rails away on that one incessantly.  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, at least the particular translation that Lott reads, says so.  In that regard, one must ask if God spoke English, a language not around when he supposedly laid down the “inerrant” text of his thought.  Much more importantly, one must ask why should those of us who do not believe that the Bible is “the word of God” and even if it were, why should it govern the behavior of those of us who do not think that its dictates and dictums should be given the force of legal authority over any person other than those individuals who want to follow them.)

In Nazi Germany, before the Yellow Star came into wide usage following the passage in 1935 of the Nuremberg Laws that put discrimination against Jews into the German legal code, 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 The Night of the Long Knives, June 30, 1934) were required to wear a Pink Triangle.  Only then did the Nuremberg Laws come.


I believe that this battle must be fought on these grounds, not only on fairness or state rights.  This amendment has meaning for everyone, because if the homosexuals are first, who could then be next to have the rights that they presently have 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)?  Further, if it were first the gays in Germany, then the Jews, if the gays were to be the first to be Constitutionally discriminated against, I just wonder who would be next.

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 Niemoller 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 for me.”

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 over the institution of slavery.  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, present as it is in the 2004 National Platform of his Party, should be regarded as well as a “Firebell in the Night.”

Author’s Note: Well after I prepared this revisit to the March, 2004 column, back in Dec., 2005, the following item appeared on CNN news: “From Ed Henry, Feb. 13, 2006. WASHINGTON (CNN) -- Senate Majority Leader Bill Frist said Monday he plans a vote in early June on a constitutional amendment banning same-sex marriage, a move likely to fail but sure to spark a fiery election-year debate. Frist, a Tennessee Republican, told CNN he's planning the vote for the week of June 5 because he wants to deal with the issue "as early as possible" before the Senate calendar fills up in a busy election year. Frist said he doesn't know how many votes the ban will receive, but Republican and Democratic aides privately acknowledged the vote will probably fall far short of the 67-vote supermajority needed to advance a constitutional amendment.”