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Warren J. Blumenfeld

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Marriage Equality: Our Rights Are Not Up for Debate!

Posted: 05/11/2012 1:00 pm

President Barack Obama took an historic move on Tuesday, May 9, 2012 in an interview with ABC TV Good Morning America host, Robin Roberts, when he "came out" for marriage equality asserting that "same-sex couples should be able to get married."

Back in December 2010, President Barack Obama supported the concept of "civil unions" for same-sex couples, and while he said his position was still "evolving," he was not yet on board with full marriage equality.

This "evolving" (devolving?) position seems to contradict a survey bearing then-Illinois State Senate candidate Barack Obama's signature in 1996 in which he claims that he "favor[s] legalizing same-sex marriages, and would fight efforts to prohibit such marriages." The administration explained this discrepancy by stating that the survey was "actually filled out by someone else."

Interviewed on NBC's Meet the Press, (Sunday, May 6, 2012), Vice President Joseph Biden expressed himself as "absolutely comfortable" with same-sex couples having the same rights as heterosexual couples.

Shortly after Biden announced his position, senior Obama adviser David Axelrod said via Twitter that "What VP said-that all married couples should have exactly the same legal rights-is precisely POTUS's position."

Obama expressed his feeling on marriage equality less than one day following a vote in North Carolina (Tuesday, May 8, 2012) by a margin of 61% to 39% in favor of a state constitutional ban against marriage equality for same-sex couples as well as all couples in a domestic partnership or civil unions relationship.

While many of our political leaders debate issues of marriage equality, I do not believe that the rights of minoritized people should be up for debate and should be settled on in the voting booth.

I have often heard it said that the issue of whether to legalize marriage for same-sex couples should be left up to the individual states to decide. As the argument goes, this is a states-rights issue, and the national government should not intrude by imposing its will on the states.

I argue most emphatically that marriage rights in general, and more specifically, marriage equality for same-sex couples is indeed a federal issue.

Let's look back to a parallel case: If the issue of prohibiting individuals from different "races" from engaging in sexual relations (miscegenation) were not settled in 1967 by the US Supreme Court, and left to the individual states, I question whether the states would have voluntarily relinquished the practice of arresting and incarcerating people of different "races" found engaging in sexual relations, and I indeed believe that these arrests and incarcerations might remain to this very day in some states.

In the case of Loving v. Virginia, 388 U.S. 1 (1967), the Supreme Court of the United State declared the state of Virginia's anti-miscegenation statute, the so-called "Racial Integrity Act" of 1924, unconstitutional, thereby overturning Pace v. Alabama (1883) and ending all race-based legal restrictions on adult consensual sexual activity and marriage throughout the U.S.

The plaintiffs in the case involved Mildred Loving (born Mildred Deloris Jetter, a woman of African descent) and Richard Perry Loving (a man of White European descent), both residents of Virginia who married in June 1958 in the District of Columbia to evade Virginia's prohibitions. Upon their return to Virginia, police stormed their home and bedroom, arrested them, and charged them with violating the law. At their trial, the judge convicted and sentenced them each to one-year imprisonment, but suspended their sentences on the condition that the couple leave the state of Virginia for a period of 25 years. At the trial, the judge, Leon Bazile, used Biblical justifications to convict the couple:

Almighty God created the races white, black, yellow, Malay, and red, and He placed them on separate continents. And but for the interference with His arrangement, there would be no cause for such marriages. The fact that He separated the races shows that He did not intend for the races to mix.

This once again reminds me of the concept of "tyranny of the majority" articulated back in the 1830s by Alexis de Tocqueville, French political scientist and diplomat, who traveled across the United States for nine months between 1831-1832 conducting research for his epic work, Democracy in America. Though he favored U.S. style democracy, he found its major limitation in its stifling of independent thought and independent beliefs. In a country that promoted the notion of "majority rules," this effectively silenced minoritized peoples. This serves as a crucial point because in a democracy, without specific guarantees of the rights of minoritized peoples, there is danger of domination or tyranny over others whose ideas, values, and social identities are not accepted by the majority.

Though, or course, the issues are different in many ways, take the following additional cases for example:

If the issue of prohibiting the practice of slavery were not settled in Lincoln's 1863 Emancipation Proclamation and later codified in the U.S. Constitution, and left to the individual states, I question whether the states would have voluntarily outlawed the practice of slavery, and I believe the practice of legalized slavery would have lasted long after the Civil War in some states.

If the issue of school desegregation were not settled in the 1954 Brown v. Board of Education US Supreme Court decision and later strengthen in the federal Civil Rights Acts of 1964 and 1965, and left to the individual states, I question whether the states would have voluntarily relinquished the practice of racial segregation, and I believe this practice would remain to this very day in some states.

If the issue of women's reproductive freedoms were not settled in the 1973 US Supreme Court decision Roe v. Wade, and left to the individual states, I believe today women's rights to control their own bodies would be dependent on their geographic location, thus disqualifying many women from their reproductive rights.

The founders of this country provided a mechanism for the protection of minoritized people against the tyranny of the majority. The checks and balances between the three branches of government -- executive, legislative, and judicial -- and the authority of federal legislation over the individual states have been seen time and again (though of course not perfectly and not without major adjustments and reversal of policy along the way) to offer some form of protection for minority rights and responsibilities. If we leave these important issues of social justice and social inequality to majority rule, then many of the evils that have plagued this country throughout its history will continue long into the future.

While the 14th Amendment to the U.S. Constitution guarantees equal protection under the law, ("... no state shall... deny to any person within its jurisdiction the equal protection of the laws"), our current patchwork of disparate and contradictory laws and state constitutional amendments remains not only confusing but also inequitable. Today, as a gay man, I can marry another man in my home state of Iowa and in seven other states and the District of Columbia, but my marriage would be declared null and void in the remaining states. Therefore, I call on our national legislators to pass a bill ensuring marriage equality for couples of all sexual and gender identities, for these are issues of human rights and equity.

The rights of same-sex couples to legally marry WILL NOT compel religious institutions to conduct religious marriages if they are opposed. Religious institutions will continue to set their own standards for conducting marriage ceremonies as they always have, without fear of prosecution if they decide that marriage for same-sex couples stands in opposition to their teachings.

Therefore, I call on our national legislators to pass a bill ensuring marriage equality for couples of all sexual and gender identities, for these are issues of human rights and equity.

 
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