Liberty and Justice for All? Hardly.
Editor’s Note: As of August 4th, 2010 Proposition 8 was ruled unconstitutional by Chief U.S. District Judge Vaughn Walker. However, this is not the end of the road, the next step is DOMA.
We are moving forward gayly!
The Will Of The Majority v. The Rights Of The Minority
By Joshua Plant
The infamous Prop 8 was passed a year ago and, just two weeks ago, Maine voters repealed gay marriage by a 53 percent majority. These laws are a complete contradiction to several cases that have fallen before the Supreme Court over the past sixty years — cases that explicitly state that marriage is a fundamental human right under the Equality Protection clause of the Fourteenth Amendment. Furthermore, according to The Principles of Democracy, “majority rule is a means for organizing government and deciding public issues; it is not another road to oppression.” Yet, in 31 states we have used majority rule to justify the oppression of LGBT Americans.
The Conservative Right has offered us an olive branch with a separate but “equal” system, marriage for them, and civil unions for us. Gay marriage has become the water fountains of the 1950s: LGBT individuals are separate but by no means equal.
Thanks, but no thanks.
If religious leaders and other naysayers want to keep the so-called sanctity of marriage intact, they should demand a constitutional ban on divorce. Such a ban would ensure that our country will preserve the sanctity of marriage. With a divorce rate higher than 50 percent, heterosexuals have shown us that unions cannot stand the test of time.
If the majority wanted to keep marriage strictly as a religious institution, then so it should be, albeit with the understanding that a marriage has no legal merit. Marriage would simply become a union of one man and one woman under God.
In order to receive the benefits that the LGBT community has been deprived of, all couples would be required to get a civil union. This would be equal. This would be fair. Because Churches and other religious institutions do not receive federal aid and will no longer be able to perform a ceremony with legal merit, our country would experience a genuine separation of church and state.
This, however, is only half the battle. Even if all 50 states pass laws allowing same-sex couples to marry, LGBT individuals will continue to be denied federal marriage benefits.
In 1996 when the United States Congress passed the ‘Defense of Marriage Act,’ signed by President Clinton, the federal government started denying same-sex couples all federal benefits and defined marriage as one man and one woman. So, regardless of how tolerant our state government may be, our country will still have a separate and unequal system under DOMA.
How can the Supreme Court allow states to segregate by way of public referendum? They continue to do so even though Justice Antonin Scalia, a foe of gay rights, wrote in Lawrence v. Texas: “What justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry”
The U.S. had this same debate for another ‘class’ of individuals until 1967 when the Court unanimously overturned laws of more than 20 states that prohibited interracial marriage in Loving v. Virginia. There is no logical argument to justify the inequality that exists today for same-sex couples.
The LGBT community has suffered through relentless oppression, violence and inequality under the law for long enough. It is time to change this country and bring the U.S. out of a puritanical mindset and into the year 2009.
Joshua Plant is a New York City-based writer