Friday, December 12, 2008

A More Perfect Union?

by Al Falafel

Envision, if you will, something along the lines of this as wording for a proposed Constitutional amendment:
"Equal access to the lawful institution of marriage, including all rights, privileges and obligations accruing thereto, shall not be denied to any consenting adults solely on the basis of either partner's sex or gender identity."
As a potential amendment, you are never likely to see it, of course. And it need not be written as long as equal access to marriage is not prohibited and the states are free to expand marriage rights to same-sex couples as well. As we know, however, a number of states have opted to amend their Constitutions in recent years, not to expand marriage rights but rather to deny them to partnerships of any combination other than one man and one woman.

Pushing for adoption of such restrictive language to state Constitutions is the chosen strategy of those compelled to assure irrationally punitive discrimination against same-sex couples. So far their crusade has succeeded in 29 states and they obviously have their sights on the Federal Constitution, aiming to punish us in the "sinful" minority of Americans who would dare to seek the same rights and protections under the law as those taken for granted by the majority.

A discriminatory marriage amendment has been proposed in Congress during every session since 2002 and failed to garner substantial support every time. This is OK with the proponents of institutionalized discrimination as they understand it is really more effective to mobilize on the state level where the law may be altered by simple majority of votes cast on referenda - such as California's Proposition 8. They have an easier time manipulating the irrational fears, ignorance and emotions of citizen "Joe the Voter" than they do with his representatives in Congress who may feel they actually have to represent their entire diverse constituencies with fairness and intelligence.

The mission of Prop 8 promoters is simply anathema to a rational system of laws based in self-evident principles of civilized human freedom. And they know it. They are politically aware enough to know exactly what they were doing. They know their movement violates the principles of equal access to legal protections, rights and benefits that are granted by the civil institution of marriage irrespective of any personally held doctrine that would bestow superior/inferior status on any citizen in good standing.

In other words, they are fully aware of the anti-American, unconstitutional nature of their intentions. In fact, with regard to the United States Constitution, their movement is unapologetically subversive and their actions are seditious. They seek to undermine the role of the Courts as the legitimate interpreters of the Constitution by supplanting the Courts' knowledgeable authority with the uninformed, biased opinions of a prevailing voter majority.

Proposition 8 was placed on the ballot by a collection of religiously motivated folks who were displeased with the learned California Supreme Court Justices' interpretation of the law. The Court found the law laking in reasonable basis to deny marriage rights to consenting partners on the basis of either partner's sex. This finding was objected to because it failed to permit the state to penalize certain law-abiding adults with a punitive denial of access to certain rights and privileges afforded all other citizens under the law. The prejudiced majority view still holds that same-sex adult relationships are distasteful at best, wicked at worst and deserving of punishment - though completely legal - by depriving committed same-sex partners the freedom to marry under the law: a freedom that the "tasteful" majority takes for granted.

As a member state of the American Union, California is obligated to comply with the Federal Constitution and its standards of equal treatment assured to all citizens in good standing. The First Amendment protection of the free exercise of religion for all citizens precludes any religious test of worthiness in order to qualify for equal treatment and access to the privileges and protections of the state.

Progenitors of Proposition 8 openly admit that they are compelled by specific religious doctrine that holds people who chose partners of their own sex to be deserving of retribution for their supposed wickedness. The retribution imposed is a denial of access to the provisions of secular laws regarding marriage. In effect, they intentionally abused the power of the ballot to cause a rewriting of the (amendable) Constitution, bringing it into compliance with their (presumably immutable) religious doctrine. The result is that voters, acting directly as the state, effectively made a "law respecting an establishment of religion" by requiring compliance with specific religious doctrine in order to qualify for state benefits.

Such subversion of the Constitution is often defended by asserting the theory known as "Original Intent." This specious hypothesis is actually more doctrine than theory as it goes beyond rational analysis of the ideas embodied in the Constitution and a respectful appreciation for the brilliance and ardor of the framers. Apologists for the passage of Proposition 8 and other antithetical measures cite "Original Intent" with a fervency that presupposes something of a divine inspiration in the work of the 18th Century colonists who framed the Constitution.
Any meaningful study of the U. S. Constitution will tend to yield a theory or set of theories that effectively elucidate the ideas committed to paper over 220 years ago. Theories are often invented to serve the needs and interest of the student but may also be purely academic. Constitutional scholars and other thinking people are naturally inclined to render a unifying thesis concerning any such historical artifact. It is what they do.

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
The body of the Constitution consists in the main of an outline of the federal government's infrastructure. It is from Article III that the Supreme Court clearly derives its Constitutional authority to interpret the Constitution itself, effectively enforcing its underlying principles. In theory, we have a very functional, closed system, theoretically independent of any outside influences or authorities. This is particularly apparent in the limits, enumerated as Constitutional Amendments, to the powers that Congress may exercise over the freedoms we enjoy as lawful citizens.

Determining what is written in the Constitution is a simple matter of recitation. It is a testament to the forward thinking brilliance of the framers that the Constitution they crafted not only allows interpretation but prescribes it for what is written and, moreover, what is left unsaid. Interpretation may begin with determining the significance of how it was written: resolving the differences between the language as used for such purposes in the 18th Century and today. Theory results from asking the all-important question of "why?"

Some answers that arise from posing this question are more theoretical than others. Why should "the right of the people to keep and bear arms...[not] be infringed?" The prefatory clause of the Second Amendment provides an arguable context though theories still abound concerning the Constitutionality of gun laws, intent of the framers and the relevance to our current reality.

The Fourth Amendment assures "the right of the people to be secure in their persons, houses, papers, and effects..." against unwarranted violation. The arguments deriving from a theoretical consideration of this amendment often lead to a conclusion of whether or not a "right to privacy" is implicit in the Constitution. The ramifications of this are far-ranging.

The Establishment Clause of the First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Here, the language calls for resolution of disparate word usage for "respect" and "establishment."

The prosecution of justice under the law, or any defense against prosecution, presumably rests on some persuasive legal theory that must needs to comply with the ultimate authority vested in the Constitution as interpreted by the Courts.

Of course, some who familiarize themselves with the Constitution operate from a prepossessed point of view. It may seem incongruous but those empowered to effect our laws are admittedly - sometimes outspokenly - beholden to the conventions of what they regard as a higher authority; specifically, a religious doctrine that may contradict the Constitution's theoretical primacy. It is nonetheless allowable. As we know, this applies to a number of those entrusted with its enforcement even at the highest levels. Whether this inappropriately belies the concept of ours being a closed system of governance answerable to no higher authority remains an unsettled matter of theory and opinion.

It is nonetheless understandable that the masses are more influenced by their intimate, self-affirming associations with religion than they are by concepts of fairness and equality. But it is not right. If We the People are truly free to believe as we choose individually and still be treated equally under the law, then democracy and religion are irreconcilable. Allowing doctrinaire opinion to influence the vote essentially yields not a democracy but a theocracy. Some far-right extremists are upfront about their intention to do just that. Conservative politicians, pundits and justices who are considered moderate but uphold the Constitutionality of legislation the intent of which is to restrict all citizens to a standard derived from religious doctrine are disingenuous at best.

Asking why anyone is so motivated to vilify their fellow human beings politically will likely evoke the claim that they believe they are "doing God's work." This self-righteous posture of God-fearing humility would actually yield, though a little honest soul-searching on their part, the true and deeply selfish motivation behind such a claim. Isn't it nothing but their own personal place in heaven that they expect in reward for "doing God's work?"

To hell with the Constitution! Others be damned! It's every man for himself. Your first responsibility is not to be a good citizen but to save your soul.
And by doing "God's work," sending the wicked to hell, you surely make more room for yourself in heaven.

December 10, 2008 The 60th Anniversary of the Universal Declaration of Human Rights

(Note Article 16 regarding marriage: It says men and women,
only couples made up of one man and one woman...)


Anonymous said...

The Establishment Clause does not apply to the States - only to the Federal Government. (Massachusetts had an established Church until the 1820s). Just because an Amendment to a Constitution agrees with a given religious belief (and just because the people that forwarded that amendment did so for religious reasons) does not mean that it subverts a constitution even if that constitution has an Establishment Clause similar to the Federal Constitution (and I don't know if CA does or doesn't). For instance, the Federal Constitution allows for the creation of courts below the Supreme Court by Congress. This is similar to those created by Moses in the Bible. Assuming that this was done after the Establishment Clause (which it wasn't), it wouldn't mean that the people creating those courts were subverting the Constitution.

A better argument might be Loving.
Adam Herbst

TED FAIGLE said...

Only "Originalists" still assert that the establishment clause does not apply to the states. It was originally interpreted that way but then came the 14th Amendment, ratified in 1868, and the Incorporation Doctrine which made it clear even though Christian Supremecists tied then and still now try to claim some kind of magical exemption.
But subsequent Supreme Court rulings have further affirmed that US citizens may not be held to harsher restrictions of their rights than the Federal Constitution allows.

I must say it is astounding how conservative Republicans have been able to control the political dialogue in recent years by inventing truth out of lies like this. They say just the sort of thing as this comment - a flat out, easily disputed lie - and they just expect everyone to eat it up because they say it with such conviction. The reason this has worked as well as it has is due to whatever percentage of people seeing them on TV, hearing them spew utter bullshit, are already predisposed to believe the bald faced lies and will not bother to look into it. They repeat it in their own circles and before long, it is common knowledge - a new "truth" - that Barack Obama is a secret Muslim and the Constitution doesn't apply to the states etc etc etc.

The example of the courts of Moses and our system is likewise absurd and simple-minded: pure neo-con obfuscation. The US Courts are all subsidiaries of the US Supreme Court in a logical rational system, regardless of what Moses (who I recall had at least 2 wives according to the bible) or anybody else did. The bible commands, "Thou shalt not kill" but I would never say that laws against murder should be done away with.

It is not any perceived similarity among systems of governance that means the people behind Prop 8 are trying to subvert the Constitution. Nor whether an Amendment agrees or not with any given religious belief. It is abundantly clear right from what they say and the effects of their actions that they are intent on subverting the Constitution. They speciously claim otherwise but never provide a plausible reason that such an irrational, unfounded restriction of rights does anything but affirm their own religious doctrine.

My current favorite false contention Religious Supremecists make is that allowing same-sex couples to marry legally changes the definition of the word "marriage." Bullshit semantics! (We are not the equivalent of the French Academy) We do not affect the contents of the dictionary by enacting laws. Except for the legal dictionaries - they ARE dependent on the law and they must be changed as the law changes. How can that be wrong? Was it wrong to change the legal definition of "slavery" after the Thirteenth Amendment disallowed it? Or the definition of "person" after the Fourteenth, Nineteenth and Twenty-sixth Amendments did?