Dear Rational Human,
You oppose same-sex marriage, yet I must believe that you are neither hateful, bigoted nor ignorant.
You are clear in stating that your concern has always been the issue of constitutional law. I am going to take a leap here and say that the Constitution is the last thing most opponents to same-sex marriage are concerned about. I read the opinions of the Supreme Court, and yes, the dissenters to make eloquent arguments. However, the hermetic legal discussion of the justices, while providing the basis for this particular opinion and dissent, is of a vastly different nature than the pervading public dialogue and atmosphere we experience every day. First, let me clarify what I mean before I directly address the legal implications of this decision.
One cannot, despite the dissenting justices’ clear desire to do so, separate the issue of same-sex marriage in this country from the long history of oppression that LGBTQIA individuals have faced. In the 1950’s homosexuality was an unspeakable taboo. Anti-sodomy laws rendered sexual acts between persons of the same sex illegal and punishable by jail time or hard labor. During the Cold War, gays were labeled dangerous subversives and blackballed from employment. In the 1970’s, Anita Bryant’s nationwide anti-gay campaign gained traction, labeling gays as child molesters who were “recruiting” kids into a gay lifestyle. Violence perpetrated against members of the LGBTQIA community persists to this day. Until very recently, openly gay Americans could not serve in the military, and the Boy Scouts of America still exclude openly gay boys from their organization. I am moving to Pennsylvania this month, and in most counties, my boss needs no other reason to fire me than the fact that I am gay.
When it comes specifically to same-sex marriage, opponents have found countless arguments to support their views: children raised by same-sex couples will be unhealthy; same-sex marriage goes against tradition; same-sex marriage validates and promotes a gay lifestyle; same-sex marriage will destabilize all marriages by undercutting sexual norms, ect. ect.
These arguments have been proven unfounded time and again, yet they continue to persist in this country. So when you say that your main opposition to same-sex marriage is on constitutional grounds, I of course believe your sincerity. However, you would be remiss if you did not acknowledge that for many individuals among the minority opposed to same-sex marriage, their view has very little basis in law.
To conclude this section, I believe that our country’s history when it the comes to the rights of LGBTQIA individuals is precisely the reason why this supreme court decision is so important. It must very uncomfortable for sincere, rational religious believers, conservatives, and members of groups who historically have benefitted from the systemic oppression of minorities to accept this shameful history. Justice Roberts, in his dissent, makes clear that we must not forget the past, yet he does not mention our country’s oppressive history. My concern is that the cogent, constitutional opposition to same-sex marriage you espouse is already being co-opted by zealots and bigots to serve their discriminatory agendas. More dangerously, without understanding the context of legal precedent, individuals and groups may use the constitutionality argument to justify acts of violence and hate.
I.
After reading the opinion and the dissents of the Supreme Court, I am more able to address, as you have, the legal implications of this decision.
You point out that everyone in this country has the right to marry someone of the opposite sex, but you do not mention the “constellation” of legal rights that marriage brings. If someone doesn’t want to get married, that is their right, and according the dissenting opinions, the government is not denying that right to anyone. I can understand this from a legal perspective, even though I don’t agree. From my understanding the plaintiffs in these cases were arguing that their liberty was being infringed upon by such laws.
I found Justice Thomas’ argument on the issue of liberty very telling. He acknowledges the many rights married couples have, and essentially states that gay couples who want to marry are barred these rights. To him however, “receiving governmental recognition and benefits has nothing to do with any understanding of “liberty” that the Framers would have recognized.” What? He is going to argue that the government can bestow rights, but that those rights do not constitute liberty as guaranteed by the Constitution? This I cannot reconcile. The right of gay couples to marry is not an issue of “fairness” it is an issue of equity. A government sends a very powerful message to EVERYONE when it chooses to only offer benefits to a certain group.
Thomas concludes his dissent by saying it is the role of government to “shield” the liberties of its citizens, not “provide” them. My question to the justice is this: if our liberties need shielding, are they under attack and who is attacking them? On constitutional grounds, how can one argue that the rights of individuals to practice their religion is under attack, and not have seen the glaring inequity of marriage benefits in this country? It is this kind of hypocrisy that has bred such distaste for reasonable debate.
Justice Scalia casually brushes aside the marriage issue in his dissent, focusing instead on the constitutionality of the court’s opinion. By doing this, he is conveniently able to avoid addressing the urgent issues affecting the plaintiff Obgerfell and countless others. He tacitly echoes Thomas’ argument that the government has not been denying rights to same-sex couples, but instead has “left them alone to order their lives as they see fit.” Gay couples, like straight couples, don’t want to just be LEFT ALONE. They want to participate in society to reap the benefits, but also to contribute in a meaningful way to its progress. Scalia and Thomas make clear their view that ignoring the unique needs of gay couples in society is the most constitutional action that can be taken.
Justice Roberts also cites how the law does not infringe on same-sex couples’ “right to be left alone.” This is true, but he conveniently skirts the issue of the many benefits denied same-sex couples due to the obstacles that exist in many states that stand in the way of marriage. Instead, he seems to advocate for a piecemeal manner of addressing the many “ancillary benefits” of marriage that the petitioners are not directly challenging. So basically, he would prefer to grant one right at a time to married same-sex couples, instead of undo the many injustices all at once. I suppose this is one option, but Justice Kennedy dismantles it when he writes:
“Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.”
The opinion of the court is that rights have been denied to same-sex couples. Just because this issue has been around for decades, does not make it less urgently in need of redress. It just makes it a long time coming.
II.
I know that you take issue with the process, though perhaps it is the swiftness of such a change that is most difficult to rectify. Democracy is the least efficient form of government because it requires all parties to be heard. I happen to agree with you, but the court has good precedent to make such decisions when they identify an issue that needs to be addressed in an urgent manner when individual liberty is at stake. Perhaps the most disheartening thing I read in the dissents, is that this decision will end debate on this issue. I think it depends on what issue we are debating. If we are debating whether or not gay couples and straight couples should enjoy the same benefits under marriage, that issue is no longer up for debate. If, however, we are debating how the government can best ensure the rights of EVERYONE under the law, then we have plenty of fodder left to discuss. My hope is that, now that the marriage debate is off the table, LGBT activist groups can direct their political clout towards other pressing issues: addressing the rights of transgender people, educational equity, strengthening anti-discrimination laws, prison reform, and climate change to name a few. There is so much that people of differing opinions can collaborate on for the benefit of our society.
Going back to the Constitution and what the Framers had in mind, I think we are in danger of presenting a false comparison. Before your read on, answer this question: Why is everyone so concerned about gay rights now, in 2015?
The reason is: people came out. People told other people about who they were despite the fear of rejection. As more and more people over the years came out, society shamed us less and less. With the bonds of shame loosened, many LGBT people have placed themselves necessarily in the public eye not to “flaunt their lifestyle” as many would say, but to present themselves honestly so the world can get to know us as people. There are openly gay legislators, doctors, lawyers, principals, nurses, bus drivers, policemen, soldiers. Before this could happen, people had to come out. Legislators for the first time had openly gay friends, openly gay children. School principals had openly gay students who needed protection from bullying. Doctors had openly gay patients who needed care. Lawyers had gay clients who needed defending, and that is why we are here today. The Supreme Court’s decision is not a sudden and earthshattering betrayal of American democracy, but the next logical step in a long line of events that are creating a more inclusive society that is and will continue to be better than what we had fifty years ago. I think that this decision will encourage more people to come out of the shadows and therefore cause more transformational change in people who today fear and hate us. There are children, little boys, and little girls in New York and Alabama and Idaho who are watching the news and feeling a little less afraid, a little less threatened. That can only be good for society. Things are scary now because people can no longer deny or ignore the issue at hand: do you accept us, or not?
III.
You say that since public opinion has shifted, perhaps it is indeed time for same-sex marriage to be legal. Yet you express your desire to have a legislative path to legalization, not a judicial one. You say that your voice has not been heard, and the Constitution has been undermined. You speak of justice for religious believers.
This makes sense. I was a teacher for five years, I know that adults and children alike need to be heard. Since gay rights became a prominent issue in this country over the last forty years or so, do you not think everyone has had their say by now? Like you point out, public opinion is changing. There have been countless legal cases, legislation in dozens of states, presidential debates, media coverage. You cannot honestly think that a constitutional amendment is the only way to properly resolve this issue. In one of the best lines in his opinion, Justice Kennedy writes:
“While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right”
This seems to be sticking point for a lot of people. If one does not believe that the marriage structure prior to this decision was harming people, then you would disagree with the decision. I can tell you from experience and from firsthand accounts of close family members, people were harmed. They were harmed and they continue to be harmed for no other reason than their desire for liberty and dignity in the eyes of the law.
IV.
Thank you for providing me with a candid description of your beliefs as they relate to religious doctrine and practice. I am not a person of faith, but I know that religion plays a very important part in the lives of many people, and that is not to be discounted. I would hope that, despite the many fears and concerns I have heard about the assault on religious freedom in this country, people can continue to practice their faith in a meaningful way.
I do not know what the future holds for the many people of faith in this country, but I do know that the churches of fifty years ago are not the churches of today. I understand that doctrine may not change, but isn’t doctrine without practice just a history lesson in what not to do? I think that the few issues that have risen to the top of public consciousness (Catholic Charities adoption, pizzerias going out of business for not serving gays, a woman who didn’t want to provide flowers for a gay wedding) are outliers, not a symptom of a looming crisis. At least I hope not.
V.
Lastly, to address the issue of attitude you mentioned. You say that many LGBT activists believe that some of the rights enjoyed by religious groups should be taken away. I do hear this occasionally but not often. Honestly, many of my LBGT friends couldn’t care less about this whole marriage debate. Many of them think married people should receive no benefits that are not afforded to non-married folks. Some see marriage as a vestige of a society that they don’t even want to belong to. Either way, it all comes down to discrimination and hate.
You must agree that there are some very hateful, harmful religious leaders and congregations out there. I have always wondered why more moderate, inclusive religious groups don’t put themselves more in the spotlight. As an educated person with friends and family who are religious, I know that most people aren’t zealots, but that perception, perpetuated by mass and social media, fuels that attitude you mentioned. It is unfortunate. All I can say is, don’t paint all of us with the same brush, there is so much diversity of opinion, philosophy and lifestyle in the LGBTQIA community, it is really hard to find any stereotypes that hold true even for slim a majority of people.
Conclusion:
Social media is a very difficult place to have a mature discussion. Here’s the reason: people don’t go on Facebook or Twitter to have their views challenged. Social media tailors our ad experience so we see more of what we want to see. When something comes along that makes us think twice, or someone asks a hard question, people get defensive. The relative anonymity of the internet allows people to spew hate and misinformation with impunity. Still, there has to be someone to be voice of reason.
I want what you want: to live in a free society where I can live my life free of discrimination. I want to get to know people of all different backgrounds and viewpoints, because it makes me better. I do believe there will be some negative consequences to the recent Supreme Court decision, but I think that long term, it will prove to be what is best. I do not think the court is subverting democracy, no more than I think they do on a regular basis as they go about sorting out legal issues that arise in other areas. The Framers included article creating the Supreme Court for a reason. I do agree with the dissenters when they write that the Framers would not recognize the manner in which the Constitution has been interpreted over the years.
My response?
Thank goodness for that.
Peace and Love,