My take on the whole debate of gay marriage.
August 3, 2003.  From my LiveJournal, but slightly edited.

Disclaimer up at the top: I am not a lawyer. I am not a politician. I am not a Constitutional scholar (or I wasn't - this may belie that statement)

I am one person, and these are my opinions.

So both the Vatican under Pope John-Paul II and now Pope Benedict XVI and President George W. Bush have said that gay marriage should not be allowed. And Bush and Company are now pushing for a national law or perhaps a Constitutional Amendment that would state that marriage is defined as a union between one man and one woman. And on what basis do the Vatican and Bush make their statements? Christian principles. In the Vatican's case, it is common knowledge that the Catholic Church is Christian. In Bush's case, he admitted as such.

All well and good for the Vatican. The Catholics are perfectly welcome to make sure that, within their church, marriage is between one man and one woman only. That is the prerogative of their religion, and it is a stand that many other Christian denominations are perfectly happy to make. Go for it, your Holiness. Alienate an increasing segment of the population here in America because of your principled bias. I don't give a damn, because I don't follow the tenets of your religion. I'm a Pagan. I'm bisexual. I'm transgendered. If you're right, I'm going to burn in hell for all eternity. Believe what you want. But you don't have the right to force your religion's beliefs and your religion's morals and your religion's principles on me. And neither does Bush. (At the original writing of this, which will remain on my LJ as is, he was sitting in the White House as this nation's leader, although not by the popular vote. At the end of it all, it was the Supreme Court that shut down post-election proceedings and appointed Bush to the office. He was properly nominated for a second term.)

And where does it say that? It says that in the documents that our Founding Fathers created when they declared the United States of America to be a free and independent country. The second paragraph of the Declaration of Independence begins:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.

Yes, the Declaration of Independence speaks of a Creator. However, the first paragraph contains this statement:

... the separate and equal station to which the Laws of Nature and of Nature's God entitle them, ...

Can anyone out there state with absolute certainty that Thomas Jefferson was writing about the Christian God? It's very likely. Jefferson was a Christian, but by his own admission, a very unorthodox one. These days he is regarded as a Unitarian. See the end of Thomas Jefferson's Views on Religion, by Michael B. Smith as an example. And then visit more pages on Jefferson's thoughts on religion, such as this page from the University of Virginia (and do take the time to look around this portion of the website, there are a lot of Jefferson quotes there) and this page on church and state. Go to google.com and do a search for Thomas Jefferson religion.

So, if I were a lawyer and this were a legal argument, I would argue that gays who seek marriage are pursuing happiness, in accordance with the Declaration of Independence. But using the Declaration of Independence as a document spelling out law is under some debate. On one hand:

John Hancock (in his capacity as president of the Second Continental Congress) and James Madison both considered it to be, in Madison's words, "The fundamental Act of Union of these States." Reflecting that view, Congress has placed it at the head of the United States Code, under the caption, "The Organic Laws of the United States of America." (The Oxford Companion to the Supreme Court of the United States, p. 223)

On the other hand:

Yet lawyers generally, and the Supreme Court in particular, have been reluctant to treat the Declaration as part of American organic law, or even to accord it the restricted status of the Preamble to the Constitution. (ibid.)

But:

The adoption of the Thirteenth and Fourteenth Amendments allayed the urgency of the question [of the Declaration's legal authority] by incorporating concepts of equality, freedom, and citizenship into the operative constitutional text. (ibid.)

So that places this discussion in the hands of the laws of the United States, with the Constitution being above all as the supreme law of the land. And since the talk is of amending the Constitution, I am going to now focus on the Constitution of the United States.

Let's begin with Article IV, Section 2:

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

But this is not holding true these days. Vermont has passed into law Civil Unions. No other state recognizes a civil union from Vermont. Massachussetts actually has legal same-sex marriages. No other state recognizes them, and some states have gone so far as to amend their State Constitutions to recognize marriage as only between one man and one woman. There are some states that have included GLBT people in their Civil Rights laws. But not all - as of the original writing of this, there were 37 states that do not recognize the rights of GLBT people as being equal to anyone else. Illinois was one such state. As of this edit, Illinois has passed legislation including GLBT people in its Civil Rights laws, although there are bills pending in the Illinois House and Senate that would reverse that legislation. So in Illinois, I cannot be fired for being BT. And yet, try firing someone for being hetero. Actually, I'd like to see it done. "Sorry - you're straight. I have to let you go because of that." Imagine the hue and cry about the "gay agenda" with something like that. Yet if we complain about the same thing, there's that hue and cry of the "gay agenda" again. That's a double standard. It could well be argued that civil rights laws are not necessary. However, it increasingly seems that unless there is a specific law enumerating individuals' rights, others think that the rights they have don't pertain to anyone else.

That's unconstitutional. Read on for my argument supporting this position.

Amendment I:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ...

During the 2000 presidential campaign, the website Web, White and Blue conducted what is described as a "rolling cyber-debate", where the public would be able to ask questions of the candidates. On October 15, 2000, this question was submitted:

"With religious diversity increasing, what are your thoughts on the protection of religious freedom and the separation of church and state? Should religions like Wicca be banned from recognition by the military, as some legislators suggest?"

Bush's reply was:

"I am committed to the First Amendment principles of religious freedom, tolerance, and diversity. Whether Mormon, Methodist, Jewish, or Muslim, Americans should be able to participate in their constitutional free exercise of religion. I do not think witchcraft is a religion, and I do not think it is in any way appropriate for the U.S. military to promote it." (see this page for more commentary about the subject)

Nice evasion. Wicca is generally accepted to be one form of witchcraft, and Bush did make that connection. And yes, the US Military does recognize Wicca as a religion and has included it in its 1990 printing of Religious Requirements and Practices of Certain Selected Groups: A Handbook for Chaplains". To read the appropriate section of the book, go here. The United States District Court for the Western District of Michigan, Northern Division, in the case of Marsh v. Hawley, Pennell and Batchett, No. 2:95-cv-285, decision rendered June 30, 1988, recognizes Wicca as a valid religion. The text of this decision may be found on this page.

Bush's opinion about the status of Wicca and witchcraft as valid therefore has little relevance as far as I'm concerned.

Amendment IV:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Patriot Act threw that out the window. Read it for yourself. The Bush administration's wiretapping, which violates FISA, is a further breach of Amendment IV.

Amendment XIV, Section 1:

... 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.

And this is why we fight for our Civil Rights. Because we are being denied the equal protection of the laws. Show me, prior to the Civil Unions legislation in Vermont, where there was any law that said a marriage had to be between one man and one woman.

You can't.

That said, it is in Illinois law at 750 ILCS 5/213.1 that "A marriage between 2 individuals of the same sex is contrary to the public policy of this State." This was enacted May 24, 1996. Is against public policy the same as against the law? Lawmakers in Illinois do not think so, for there are three bills (one a joint resolution) in the 94th General Assembly that seek to define marriage specifically as one man and one woman. One bill and the joint resolution bill seek to have that so defined in the Illinois Constitution.

Christians, with their moral values, are dictating to the rest of us what we can and cannot do. But there is no law. Or there was no law, anyway. And now we have laws that abridge the privileges of some citizens of the United States unfairly and unequally. I refer, of course, to the laws enacted on state and local levels that do define marriage as being between one man and one woman - the "Defense of Marriage Acts". Some of these have also found their way into various state Constitutions.

The big bugaboo in this is Amendment IX:

The enumeration of the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

So just because it isn't in the Constitution doesn't mean it's illegal. This, I suspect, is why the Religious Right of this country would like to see a Federal Constitutional Amendment that limits marriage. But that would mean that the moral values of a minority are being forced on the people as a whole. The last time that was tried was Amendment XVIII, which prohibited the "manufacture, sale, or transportation of intoxicating liquors". That amendment was repealed with Amendment XXI. Amendment XVIII was a mistake, brought about by people who blindly followed the few who were rabid in their beliefs.

We now have the same thing happening in this country with gay marriage. But the fact is that, until Howard Dean and the Vermont legislators acted with the Civil Unions law and many other communities and states reacted with so-called "Defense of Marriage Acts", gay marriage was not specifically illegal. People who are following their religious dictates and forcing them on the rest of us have made it illegal.

And this country was not founded upon Christianity. It states as much in the oldest treaty still in force in this country - The Treaty of Peace and Friendship, Signed at Tripoli November 4, 1796. I quote Article 11:

As the government of the United States of America is not in any sense founded on the Christian Religion, ...

The original and copies are preserved in the National Archives in Washington, DC, under Treaty series No. 358. Here is a scan of the original handwritten document. The Library of Congress has collected many American State Papers and scanned them in online. The Treaty begins on page 18 of Volume 2 of the Foreign Relations volumes and can be seen here - the document begins near the bottom of this page, and you will need to click on the "Next Image" link for page 19, where it continues. Article 11 is on page 19 of this volume. The treaty, with Article XI, was ratified by the 1797 United States Senate, 5th Congress, 1st Session, by unanimous vote.

And yet our religious leaders want to incorporate Christianity into our government. Conveniently ignoring this Treaty. Conveniently ignoring the fact that our Founding Fathers, most, but not all, of whom were devout Christians, specifically excluded rule by religion in setting up this great Republic in which we live.

Keep your religion to yourself. And keep it out of the law, where it, under the law, does not belong.

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