13 July 2006

No Getting Married in the Front of the Bus


Did you miss me?
Well, don't worry. My aim is a bit off too.
Just make sure you get me next time.

Regular readers will have divined that I support "gay marriage". If you don't mind, I thought I'd expound on that for just a little while. Why it is constitutional, and why it is not going to be admitted as being constitutional until approximately 2008 or later.

My prima facie argument for marriage withought restrictions or bigotry is based on the Declaration of Independance's inherent promise of "life, liberty, and the Pursuit of Happiness." Yes, I read that rather broadly, but I would do that, wouldn't I? I like the idea of a 'Pursuit of Happiness' as a lofty goal that can be attained by just sitting here and writing a blog that illuminates or irritates.

I recently remembered a certain senator who was opposed to Unrestricted Marriage speaking out against his being labelled a "bigot" for his views. Apparently, he and his comrades in arms fighting the Good Fight against people who are engaged to be married, beleive that they did not deserve to be slandered in those terms.

"Bigot" conjures up images of a past turmoil with its own injustices that took far too long to redress. Some observers might point out that in our current iteration of social unrest, the same sorts of people appear to be the agressors in curtailing the "Pursuit of Happiness". I don't care to point, but thats usually because I am picking my nose at the time. I consider that time well spent by minding my own business, thank you very much.

I'll leave it for someone else to compare and contrast the problem of Unrestricted Marriage with the Civil Rights Movement. I really do not have the time to be as exhaustingly thorough as that project deserves. Furthermore, I dont recall enough of the milestones in Civil Rights to get started on it - being the lazy American that I am.

What I do find to be enormously disturbing about this Marriage issue is that, following the Civil Rights movement, why is there any crisis at all? Shouldn't the core issues about people being free to go about their lives without being discriminated against or hasselled by a Draconian "Man" have been solved already? Why wasn't there a Constitutional Amendment saying that "Thou shalt pursue thy freedom such as it doth not violate existing laws or infringe on the rights of others."?

The answer, as I divine it, is probably the main flaw in our legal system. As my buddy Jim reminds me, the Constitution was written to be a living document, that can be changed and adapted to the needs of our country. As a part of this evolution, the Supreme Court is empowered to strike down laws enacted by Congress that are deemed to be Unconstitutional. Because of these Supreme Court decisions, most "evolution" or "interpretation" of the Constitution and the Bill of Rights is manifest in Supreme Court Decisions about what protections are, or are not provided for under the Constitution. Thus, the problem of school segregation (Jim Crow laws) and other social problems were "resolved" (a word I use only while rolling my eyes) through Supreme Court Decisions and not through adding amendments to the Bill of Rights.

So, lets start at the top, shall we? Why is unrestricted marriage legal? Because of Amendment #1 (and my personal favorite):
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

To hedge that bet, I'll stack on top of that Amendment #14:
"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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."

Regardless of how anyone chooses to restrict marriage, it is simply unconstitutional to do it. Amendment #1 precludes prevention of discriminating against religions that permit it, and Amendment #14 gaurantees equal protection against "abridged priviledges" and due process of law, which I take to mean that the state must recognize a religious or civil union as marriage under the law.

BUT, sadly we have to wait for the Supreme Court to strike down all these naysayers first. What that requires, is three things. First, a relevant case has to wind its way up to the Supreme Court. Secondly, the High Court has to be willing to try the case, and they don't always. Third, they have to adjudicate the case without simply sending it back to a lower court, in which case no judgement may be made on whether the pertinent laws are constitutional or not.

Fortunately, in the mean-time a constitutional amendment that proscribes certain unions could never get off the ground since that would be unconstitutional to start with. By 2009 or so I expect people will be proudly going to the altar. In a church with protesters outside, because that sort of thing wasn't allowed until after the Supreme Court struck down all the laws against it. Isn't democracy wonderful?