A Constitutional Conservatives Case for Same-Sex Unions

[jamal greene]

“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”

Fourteenth Amendment. US Constitution


“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. “
“The Citizens of each State shall be entitled to all Privileges and
Immunities of Citizens in the several States.”

Article V, Sections 1 & 2. US Constitution


I was given the opportunity recently to participate in a town hall panel
discussion on the Tea Party movement at a local university here in
Pennsylvania. During the course of the two hours long dialogue with
students and members of the community we discuss a variety of issues,
from the current economic crisis to the coming entitlement crisis; there
were even questions on Globalization and the War on Terrorism. So
needless to say, we had a thorough dialogue. Towards the end of the
discussion one of the students in attendance, a young lady, asked about
the Tea Party’s stance on same sex marriage and GLBT rights in general.
Before I could answer one of the other panelists, speaking on behalf of
her tea party group, said the tea party didn’t take positions on social
issues because of their divisive nature; and on some level the tea party
is correct in doing so. After the town hall discussion several students
from the university came up to me to further probe my thoughts on
issues ranging from the legalization of marijuana to the deficiencies of
our criminal justice system. During the discussion we moved from the
topic of incarnation rates to social issues, and it was at this point
that I gave an answer that shocked the young undergrads. I told them
that while I am Pro-life, based on medical reasoning, not religious, I’m
also “Pro” equal rights and protections for gay and lesbian Americans.
One of the students said he was stunned by my answer and that he thought
all conservatives were anti-gay. I assured him he had been misinformed
and that many conservatives and most libertarians, Dick Cheney, Sean
Hannity, and Glenn Beck to name a few, are actually proponents of equal
rights for the gay community. (Note: While Hannity doesn’t favor same
sex “marriage”, as Cheney and Beck do, he does favor allowing gays to
enter into unions, whether it be civil unions or domestic partnerships).
I am still pleasantly surprised when I meet other conservatives who are
in favor of ensuring equal rights and protection under the law for gay
and lesbian Americans. Polls show increasingly that young conservatives
are more prone to support same sex unions than their parents’ generation
and as time progresses that number will only increase. If all men are
created Equal, and Liberty and Justice is truly for all, why then are
some many Americans denied their right to individual liberty in choosing
who to share their life with?

In 1967 a similar argument ensued in the country. During that time the
debate was as to whether or not a man and woman, of different races,
could legally marry. Then, as it does today, the US Constitution stands
on the side of individual rights, not theology being legislated from
Washington and state capitals. As Americans we must remember the US
Constitution was not written to restrict the rights of Americans; it was
constructed to restrict the powers of the government. The Freedom to
choose is one of the things that makes America the nation we have all
come to love, a truly Exceptional Nation. Restricting individual choice
and freedom, particularly with something as personal as marriage, is
counter to the founding principles of this nation, regardless to whether
the issue is of interracial or same sex unions.

In June 1958, two residents of Virginia, Mildred Jeter, a black woman,
and Richard Loving, a white man, were married in the District of
Columbia because the laws of Virginia, specifically the Racial Integrity
Act, outlawed marriage between individuals of different races. Shortly
after their marriage, the Loving’s returned to Virginia and established a
life for themselves in Caroline County. Shortly thereafter the local
police received word that the two were a couple and immediately set out
to arrest them for violating state law forbidding unions between
interracial couples. The police raided the Loving's home in the middle
of the night and arrested them. The Loving’s were charged with violating
Virginia's ban on interracial marriages. On January 6, 1959, the
Loving’s plead guilty to the charge and were sentenced to one year in
jail; however, the trial judge suspended the sentence for a period of 25
years on the condition that the Loving’s leave the State and not return
to Virginia together for 25 years. The Judge stated in his opinion
that: "Almighty God created the races white, black, yellow, malay and
red, and he placed them on separate continents. And but for the
interference with his arrangement there would be no cause for such
marriages. The fact that he separated the races shows that he did not
intend for the races to mix." Does it strike anyone as odd that the
Bible and God were routinely invoked doing the debate over interracial
marriage, just as they are today in the debate over gay unions? I guess
the judge assumed the bible was fair reference to use since it does in
fact sanction slavery. Later, in 1965, a three judge district court
allowed the Loving’s to present their case to the state’s Supreme Court
of Appeals, but in time it came as a setback to their cause as the
Appeal’s Court upheld both the lower court’s ruling and criminal
convictions.


In upholding the constitutionality of these provisions, the Supreme
Court of Appeals in Virginia referred to its own 1955 decision in Naim
v. Naim as its basis for supporting the lower court’s decision. In the
Naim case, the state court concluded that the State's legitimate
purposes were "to preserve the racial integrity of its citizens," and to
prevent "the corruption of blood," "a mongrel breed of citizens," and
"the obliteration of racial pride," obviously an endorsement of the
white supremacists doctrine. The State of Virginia argued that the
meaning of the Equal Protection Clause, as illuminated by the statements
of our Founders, is only that state penal laws containing an
interracial element as part of the definition of the offense must apply
equally to whites and blacks in the sense that members of each race are
punished to the same degree. Thus, the State contends that, because its
miscegenation statues (laws banning interracial relationships) punish
equally both the white and the black participants in an interracial
marriage, these laws, despite their reliance on racial classifications,
do not constitute an invidious discrimination based upon race. So in
laymen's terms, the High Court of Virginia found that the fourteenth
amendment's Equal protection clause did not apply to interracial
couples; thus denying them the right to marry. They interpreted the
clause to mean that as long as both parties, the black woman and white
man, were giving "equal" treatment, meaning penalties, under the law,
that they were afford their rights under the Constitution. However, the
US Supreme Court rejected the ruling of the Virginia Appeals court and
ruled UNANIMOUSLY Virginia's racist laws were in violation of the
Fourteenth Amendment and the Equal Protection Clause. The majority
opinion stated: "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".

In light of the Loving case, the question that must be asked is whether
or not states, and the Federal government, are in violation of the 14th
Amendment and Good Faith and Credit Clause, as well as the Equal
Protection Clause, when denying same sex couples the right to marry?
Does DOMA, the Defense of Marriage Act, signed into law by Clinton to
prevent same sex unions performed in one state from being recognized in
another, violate the US Constitution? It would appear that it does. It
is my belief that when, not if, a case goes before the US Supreme Court
challenging the constitutionality of state bans on same sex unions, the
Court will have no choice, under the US Constitution, but to find such
laws unconstitutional. Citizens of one state cannot be denied the rights
and privileges afforded to citizens of another state simply because
some individuals may not like it. Some opponents of same sex marriage
may point to citizen’s objection to same sex unions in certain states as
justification for denying the most basic of fundamental individual
rights. However, I’d point out that during the 1950s and 60s, when some
form of segregation was the law of the land in many states, a majority
of American’s opposed desegregation but over time feelings changed.

As the Opinion of the 1967 Warren court stated: Marriage is one of the
most "basic civil rights", a right that is "fundamental to man's very
existence". According to the US Supreme Court, the fourteenth amendment
"REQUIRES THE FREEDOM OF CHOICE IN MARRIAGE". The freedom to marry who
one chooses, regardless of public opinion, as exemplified in the Loving
Case, is at heart one of the most fundamental civil rights,
Constitutional rights, and most importantly Human Rights that we have.

[Dorothy L Brooks]

Actually, marriage was instituted as a societal norm and not just to protect children. Children were thought to be the natural product of a male, female marital relationship. Childlessness or barrenness was deemed to be a curse. But the man and woman were committed in marriage whether they were childless or not. I would argue that marriage is even more so for the couple, and not necessarily for the children. BUT ...children benefit greatly from having a mom and dad who are committed to making their covenant relationship work.

[Dorothy L Brooks]

I so totally disagree, but respect your well reasoned argument.

The reference of the Bible is a good one. However, Marriage is also established as a product of how society establishes order and norms, otherwise we would live without norms and boundaries that we should (or will be made to respect). The Lovings marriage was illegal in Virginia and as a result, they were made to respect that law. When the law changed, it was no longer an issue. But people had changed. It became clear that allowing marriage among the races would not harm society and did n ot infringe on the rights of others. However, it is the understanding and belief by MOST Americans, that gay marriage WILL harm society and that belief is rooted in our belief in the Bible, in what benefits children the most, and the negative affect on society of gay couples who marry and hold themselves as equal to couples who are 1 man and 1 woman, committed for life. And I know, the argument is that there are many gay couples who remain together for years and many straight couples who are oft divorced. BUT...the gay community is trying to change the STANDARD. and the STANDARD is rooted in the psyche of most Americans as a man and a woman. Unlike interracial marriage which was changed because God ordained that it would be changed in time, the standard for families will NOT be, unless activist courts MAKE it happen all over this country. If we allow THAT to happen where our rights as citizens are ignored, then we are all lost anyway.

[mason weaver]

I am curious! If I wanted to marry three women at the same time or if my wife wanted two husbands could that be argued constitutionally? If we are judging by the Human Rights standards, please give me our opinion on prostitution, infidelity, sex with children, rights of parents to deny health and education to children. Should I be able to walk away from a marriage as easily as I can a live in relationship?

Marriage was not established as a Human Right, it was established to protect children. There is no constitutionally protected right for adults to do whatever makes them happy. Thank God for that!