On February 24, 2004, U. S. President George W. Bush called for a
constitutional amendment to ban same-sex marriage, stating that we
must “prevent the meaning of marriage from being changed forever.” He
expressed the fear of many Americans that activist judges and courts
will fail to preserve traditional opposite-sex marriage, and so create
“confusion on an issue that requires clarity,” allowing for the
rollback of “more than two centuries of American jurisprudence and
millennia of human experience.”
The tradition the
president claims to be defending by depriving gay and lesbian people
of the right to marry does not serve any legitimate public purpose.
Rather, it is part of a continuing effort to maintain and further embed a barely
articulated, nearly invisible religious preference in American law and
to subvert principles articulated in the First Amendment to the U. S.
Constitution. The Establishment Clause of the Constitution’s First
Amendment could not be clearer in its insistence that religion does
not belong in American law: “Congress shall make no law respecting an
establishment of religion…”
The
Constitutional Case for Same-Sex Marriage
There is no
provision in the Constitution today that proscribes same-sex marriage,
and the Fourteenth Amendment makes it clear that the right to marry
the person of one’s choice is one of the fundamental liberties all
Americans should enjoy.
The Fourteenth
Amendment, which applies to both the federal government and to the
states, provides that no “state shall 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.”
Taken together, these two clauses, the Due Process Clause and the
Equal Protection Clause, prevent the government from depriving
Americans of fundamental liberties--including the right to
marry--without due process of law and provide that such liberties
belong to all Americans equally.
The Shadow
Establishment of Religion in American Law
Despite the
constitutional guarantees of due process and equal protection, most
Americans find the proposition that marriage is necessarily a union
between a man and a woman obvious and natural, and many believe that
it should be inscribed in the Constitution. To most people, other
marital arrangements seem unfamiliar, if not bizarre.
This widely held
sentiment against same-sex marriage is often mistaken for a universal
principle, but it can only come from fundamentally religious roots.
There is no plausible non-sectarian way to justify it. Efforts to
reflect religiously derived sentiments against same-sex marriage in
the law continue the practice of the shadow establishment of a
widely held sectarian perspective regarding the “sanctity of marriage.”
The shadow
establishment of religion in American law is not new, but because
it is derived from widely held, rarely questioned sentiments, it is
often insidious and all but invisible. In the case of state sodomy
trials, however, the shadow establishment manifested
itself vividly. In their rulings against gay plaintiffs and
defendants, judges often used such religiously derived terms as “anathema” or “an
abomination” to characterize homosexual sexuality and some even
condemned the convicted with direct quotations from Christian scripture.
The Weakening
Shadow Establishment
Two recent
Supreme Court decisions have sharply limited the shadow
establishment by ruling that homosexual Americans are the legal
equals of other Americans and that homosexual behavior per se
is not criminal.
In the case of
Romer v. Evans in 1996, the Supreme Court was asked to rule on
Colorado’s Amendment 2, a state constitutional amendment enacted by
popular vote that denied lesbians and gay men the right to bring any
claims of discrimination. The court ruled that Amendment 2 made
homosexuals unequal to other citizens. “This Colorado cannot do,” the
court ruled.
In 2003, the
court made a decision with even broader implications in the case of
Lawrence v. Texas. Before Lawrence v. Texas, opponents of
gay and lesbian rights and same-sex marriage argued that sodomy laws
defined homosexuals as criminals. Therefore, they reasoned, the state
can legitimately deny liberties--including the freedom to marry--to
this criminal class. In its decision in Lawrence v. Texas, the
court annihilated this argument by ruling that states cannot demean
homosexuals “by making their sexual conduct a crime.”
Conclusion
Supporters of the
shadow establishment of religion in American law as it relates
to same-sex marriage find themselves in a difficult legal position in
2004. The Equal Protection and Due Process clauses of the U. S.
Constitution’s Fourteenth Amendment make it clear that the freedom to
marry is a right that belongs to all Americans, and the traditional
argument that homosexuals are criminals whose rights may be abrogated
has been demolished by the U. S. Supreme Court.
Since same-sex
marriage opponents find it increasingly difficult to create effective
anti-gay laws, they have turned to the desperate and radical tactic of
proposing to alter the U. S. Constitution in ways that compromise some
of its most important principles. The Federal Marriage Amendment the
Bush administration supports would deny a specific group of Americans
equal protection and due process under the law in a way that starkly
contradicts and compromises First Amendment guarantees against the
official establishment of religion in the United States, and the
fundamental principle of equal citizenship provided in the Fourteenth
Amendment.
All Americans,
especially those who harbor sentiments against same-sex marriage, must
be educated to understand that the Federal Marriage Amendment the Bush
administration proposes weakens key foundations of American law and
politics.
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