Saturday, July 16, 2005

Constitutional Study, part 1

I'm starting a new series of Constitutional studies. I think we Americans should do this in much the same way that church goers do Bible studies. This first one is a repeat of some research I did during the Presidential campaign last year. I have gay friends and family members so this issue is close to me, but I try not to let that bias how I read 'the law.' I look at the Constitution for what it says and not what I think it implies. That is where people get all messed up, when they start injecting their personal values on the law. That's not what our Constitution is about. It's about maintaining our freedom from excessive intrusion of government in our lives. The whole 'separation of Church and State' issue is concerned with keeping 'value judgments' out of our laws, but that's another study. This one was done in response to all the hoopla about gay marriage and a Constitutional Amendment about it and all the crazy crap people were throwing around about it.


Article IV Section 1: Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. Section 2: The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States....

No matter what laws a State's legislature passes, if it's determined by the US Supreme Court to be unconstitutional then it can't stand. It seems by the above that each State is required by the US Constitution to recognize each other State's marriages which fall into that catagory of 'public acts and records.'

Fourteenth Amendment 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.

Again, I interpret that as a Constitutional guarantee that a person's rights, as a homosexual, should not be 'abridged' in any way that would deny them equal protection of the laws, including the right to marriage as well as employment or any other 'privileges' of 'life, liberty, or property.'

I have found nothing in the Constitution that would support any State not recognizing the marriages performed in other States. As for an amendment stating that marriage is between a man and a woman I just don't see why that's necessary. But that's not for the reasons that John Edwards said it was unnecessary in the VP debate:

"Under the law of this country for the last 200 years, no state has been required to recognize another state's marriage.

"Let me just be simple about this. My state of North Carolina would not be required to recognize a marriage from Massachusetts, which you just asked about.

"There is absolutely no purpose in the law and in reality for this amendment. It's nothing but a political tool. And it's being used in an effort to divide this country on an issue that we should not be dividing America on."

I think that Kerry and Edwards were doing more to turn it into a divisive subject.

The reason that I think an amendment is unnecessary is because gays getting married does nothing to invalidate, dilute, desanctify, or weaken heterosexual marriage. No one has given me any arguments strong enough to support that idea. If it's to do with 'sanctity' which means holiness or sacredness, then couldn't you just as easily say that purely civil marriages like are performed by the justice of the peace at the courthouse dilute, desanctify, and weaken Marriage too? But no one can reasonably say that a civil ceremony is less valid than a religious one. It seems pretty straight forward to me, but I guess I'm simple-minded or something.

When I first began my little Constitutional study last fall I stumbled upon one of the big legal issues of American lawmaking. It turns out that this 'full faith and credit' clause is and has been a big sore spot in our legal system. Ha. Whoda thought me and my little study would naively pick it out as a defense of gay marriage? If nothing else that tells me that someone without any 'legal' education can read the Constitution and come to a simple conclusion as to what it means in any particular case. I didn't know about any precedents that had been set in the past regarding states' marriages. In my research I found out that this clause has been used to defend polygamy among other things. So the Judges and Lawyers have decided that it doesn't stand if one state's law terribly offends or violates another state's 'public policy.' But to my simple mind it is clearly un-Constitutional to allow States to not recognize each other's laws. This is why some think that there must be a Constitutional Amendment to specify that marriage is between one man and one woman. An Amendment sounds like an easy solution, but it's wrong in the same way that the Prohibition Amendment (18th Amendment) was wrong. Yes, folks, that's right, don't you remember that there was a freakin' Constitutional Amendment about alcohol? Sometimes We the People do screw up. Let's not do it again this time with issue.

Also, please check this link that I saw on eatmisery's blog. Marriage Fairness. I haven't read all of that site, but it looks very informative. My own views on this issue have evolved from thinking that gay marriage was 'wrong' so many years ago to fully supporting it now because, as I said above, I have friends and family members who are affected by this issue.

And yes, I'm still a Conservative, a real one. Please, President Bush, nominate me!!

20 comments:

mr_g said...

As you may know, I'd far from call myself a conservative, yet I'm not liberal on all issues either.

I agree with you on the Gay marriage issue. We've got people starving to death, people dying on foreign soil, illiteracy running rampant and so many other problems that we don't need to invent a moral issue that shouldn't even be an issue.

If Gay people want to experience all the joys and pains of marriage...and divorce...who the hell cares? Damn! It's a sexual preference/lifestyle...it's not like we're talking about aliens from Mars...what the hell is wrong with people anyway?

Rae Ann...you may want to read my most recent post on tolerance...

Anonymous said...

I like Dennis Prager's recent response:
Society has every right, indeed the duty, to define marriage. A constitutional amendment defining marriage has become necessary only because liberal judges, by taking that role upon themselves, have rendered it impossible for American society to do so. Liberals are delighted to have five justices define the Constitution to allow abortion for no reason other than the convenience of a pregnant woman, but find adding an amendment to define marriage passed by the legislatures of three-quarters of the states offensive.

And liberals should tread carefully before accusing conservatives of favoring censorship. It is overwhelmingly liberals and the Left that censor speech in America -- through speech codes at most universities, through laws defining what a man can say in the presence of a woman in the workplace, and through "campaign finance reform" that ensures only multi-millionaires can run for office.

midwest_hick said...

Well thought out entry...and much deeper than anything I post...lol

Kid Bastard said...

"Anonymous", I am opposed to judges legalizing gay marriage, because I don't think gay marriage requires legalization.

I am, in fact, opposed to the term "gay marriage". Not the term itself, but that we have to use it. It's just marriage. It's not gay marriage, or hetero marriage, it's just marriage. I find it utterly ridiculous that we even have to debate this issue. It should be a given. Are they American citizens? Then they have all the rights and priviliges of any American citizen. Period.

If religious officials of any religion object to the marriage on moral grounds, they can simply not perform weddings for gay couples. Citizens who object on similar grounds can also refrain from attending a "gay wedding" and, one would assume, refrain from marrying another of their gender.

Denying the right of marriage to people based on their sexual orientation is just as backward and archaic as denying marriage based on, oh, say... race? Religion?

But okay. Let's say we, as "society", define marriage. Simply define it as the union of two consenting adults. There. Gay people can get married, but it doesn't feel like they're getting permission, and those who need to do such things get to define something.

mr_g said...

Anon, it's a shame you generalize everyone into conservatives and liberals with liberals being the bad guy. Really, they're not that different. For example, they both spend money like drunken sailors; they just spend it on different things. Liberals spend it to help people in need. Conservatives spend it to help corporations get richer. Oops, did I just generalize?

Rae Ann said...

anonymous, what I am saying is that as a TRUE conservative I look at the Constitution for the Ultimate answers on issues. I don't inject my religious/moral beliefs into it. I agree with what you say about censorship and the liberals who want to keep anyone who doesn't agree with them quiet. But, the pseudo-conservatives are the same way because they want to impose their morality on everyone else. They are all the same as I see it. As a TRUE conservative I want to live and let live with as little government interference as possible. I don't know why people are so threatened by gay marriage. It's not as if heteosexual marriage is in the best condition. Like mr g said, let anyone get married who wants to and let them experience the good, bad, ugly, and difficult about it.

Anonymous, please tell me WHY it is so important for society to define marriage as between a man and a woman (and no religious reasons please, because this isn't about religion). I'm still looking for a good enough explanation of that from a Constitutional/Legal point of view, which is what this is REALLY about anyway. List for me reasons why a gay couple being married will hurt your marriage (if you are married).

I'll be back to respond to other comments later today...

Rae Ann said...

kid bastard, you said that very well. thank you!

mr g, I'll head over to read you post later today when I have more time. I think you're on to something about all this labeling as 'liberal' and 'conservative'. I call myself conservative because I really think that the government should be smaller and less involved in our lives. I suppose that sounds somewhat Libertarian, but they are a little too 'out there' even for me about many issues. I don't like when people assume that 'conservative' means that I don't care about the poor and all that. But that's another issue. Maybe I should start calling myself a Fundamentalist, not religiously, but because of my strict interpretation of the Constitution. But that label has its problems and mis-connotations (did I just do a Bushism there?).

I just think we should read the Constitution for what it says and not for what we want it to say.

madman said...

I am not an expert on the Constitution. Hell--I am not even sure I can spell it correctly.I am not sure about the morallity of the issue. HOWEVER-I do believe Gay people should be allowed to be married. I think everyone should be just as legally miserable as the rest of us hetro-sexuals.

Assorted Babble by Suzie said...

Rae Ann,
Firstly, I would like to thank you for sharing the knowledge and the way you see it. Actually by reading what you stated it only makes me more confused. I am so split on this issue, I too have family and friends that this effects. Is it wrong to be on the fence with this issue, when others I feel so strongly about?

My hopes is we start looking at the judges as a whole in this country. I am soon posting some research myself on Governors and Judges that need some attention.... about these sex predators....that is my main issue for the passion as you feel on this. Hopefully..by me commenting here all will be okay with everyone. Thanks.

Rae Ann said...

midwest hick, welcome to Hoe Land! You underestimate yourself. One man's junk is another's treasure.

madman, you're so funny! But it's true. No one, whether gay or straight, goes into marriage really understanding how hard it will be.

suzie, it's perfectly okay to be on the fence. There are other issues that I haven't decided on too.

Assorted Babble by Suzie said...

Rea Ann, Thanks! (smiling) Who do you think will be named near the end of the week? Perhaps that ruffly collar WILL be replaced by a woman! you or maybe Edith Jones (LA) or do you think Laura last night, might have just been using her sense of humor? And it may be a man (Hispantic instead)! Wondering who your guess is?

Rae Ann said...

suzie, I just don't know. I guess I should be holding my breath, eh?

Assorted Babble by Suzie said...

Rae Ann I meant to say Laura Bush's comment LAST WEEK. (correction)

My prediction is one of the two women front runners, but past President's like to surprise us on this. Perhaps a woman instead of the 1st Hispanic...is my guess.

Rae Ann said...

well if he wants to surprise everyone then I'd be the best choice! lol

D Hammett said...

Rae Ann -

Gay marriages were not OK until your friends/family were impacted. What's next? Taxes are OK as long as you're not taxed? I guess it all depends on whose ox is being gored (no pun intended).

Rae Ann said...

d hammett, did you not read my entire post? Did you not read the Constitutional passages? Having gay friends and family didn't make it okay (it only made it a more prevalent issue in my life); enlightening myself through knowledge and understanding that ALL people have certain unalienable rights made it okay. I've heard gay marriage compared to bestiality and polygamy and now taxes. Those sound like the same arguments that people used so many decades ago when they were trying to keep mixed race marriages illegal/unrecognized. When it comes to our laws in the US my philosophy is to go to the Constitution and see what it says. To me, the Constitution is as sacred as the Bible is to Christians.

People, this is America, land of the free and land of equal opportunity. It's not my concern that some people might think that gays being married devalues all marriages. Too bad for them. Does shitting on a dollar make it less valuable? Maybe to a germ phobe...

Maybe that's not a good example. There were many who cried "letting women vote will devalue my right to vote" or "letting blacks vote will devalue my right to vote". There are few who will openly say that now. I hope that's because people no longer believe that because they have learned better.

America isn't about being exclusive. It's all about being inclusive.

DHammett said...

Rae Ann -

If you acknowledge that the Bible is sacred to Christians, then surely you can accept that a biblical marriage involves a man and a woman and, as such, is an important part of the faith. Likewise, the most common dictionary versions also refer to unions between man and woman. None that I've seen refer to same sex couples.

Having said all that, and admitting that I believe homosexuality is wrong (yes, I have homosexual friends,yada yada), if two men or women wish to get together, that's up to them. Just call it what it is (same sex union, etc.), not marriage.

Rae Ann said...

dammit hammett, why'd you have to go and appeal to my linguistic side?

DHammett said...

dammit hammett...shades of Rocky Horror. ;D

Rae Ann said...

dammit, hammett, I like you. lol