Thursday, June 14, 2007

Gay Marriage Still Legal in Massachusetts

Perhaps I am stepping on toes, as DC is from that great state of Massachusetts, but I wanted to comment on the state's vote to block the proposed "marriage is between a man and a woman" amendment from going to referendum in 2008.

I know next to nothing about Massachusetts politics, so I will comment on the broader issue here. I have yet to hear a convincing non-religious argument for banning same-sex marriage. The overwhelming majority of gay-bashers will point to Christianity or some vague notion of "tradition" as condemning homosexuality. Oddly enough, the cultures that formed the "tradition" of Western civilization (primarily the Greeks and the Romans) hardly looked down upon homosexuality, but I suppose that is beside the point. So, people argue "the Bible defines marriage as between a man and a woman," which I'm pretty sure it doesn't, but let's go with it for the time being. For any political figure to use religion as primary reasoning for any piece of legislation is to blow a gaping hole in the "high wall of separation" that Thomas Jefferson described as existing between religion and government. Indeed, the First Amendment states, "Congress shall make no law respecting an establishment of religion." In other words, Congress cannot establish a religion or make any laws that suggest an establishment of religion (for instance, while Congress may not establish Christianity, passing a law requiring compulsive Bible-reading would clearly imply an establishment of Christianity). So, if the only source of defense for a law is the Bible, doesn't that suggest that it is establishing a religion? After all, if we ask, "Why is gay marriage still illegal in this country?" one answer would certainly be "because America is still largely populated by bigots who try to hide behind Jesus," but a more useful answer for our purposes here would be "because Christianity says so."

Hmm. A law based solely on religion (and quite possibly a skewed reading of religion). This, to me at least, seems blatantly unconstitutional (and this is without even diving into "equal protection" considerations!). I would be curious to see how a Constitutional challenge to such laws would fare in the Supreme Court. I am inclined to think that such a law would be overturned, even given the current make-up of the Court. After all, unlike Scalia and Co., Justice Kennedy is no enemy of the "homosexual agenda." After all, in Lawrence v. Texas, he authored the opinion that deemed unconstitutional a law banning homosexual sodomy. Of course, the decision did not reach as far as marriage rights, but it certainly paved the way for such a case. With the precedents in Lawrence and Loving v. Virginia (deeming unconstitutional a law banning inter-racial marriage), I simply do not see how a reasonable Court could uphold such a law.

I anticipate a case challenging the federal Defense of Marriage Act within the next few Supreme Court terms. The law does not require any state to recognize a gay marriage done in any other state. So, now that Massachusetts is allowing gay marriages, it seems fully possible that a couple married in Massachusetts will sue another state for not recognizing its marriage.

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