When Is the "The Will of the People" not the Will of the People? The Utah Experience

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Starting the first of the New Year, I will be resuming this blog with Monday through Friday comments. Selling our home, a move to a new city, and family health issues kept me away for much too long. I look forward to resuming these pages and hearing from you. In the meantime, I will comment on a few important issues.

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When Is the "The Will of the People" not the Will of the People? The Utah Experience

Here we go again!

It is said that the last refuge of scoundrels is patriotism.  Today, it is hiding behind the thin veil of sanctimony disguised as "the will of the people."  Whenever the majority votes to deny certain minorities the rights the majority enjoys, it's always "the will of the people." This solemnly uttered bit of piety is found in abundance whenever a state amendment against gay marriage is overturned by a court. It hit its highest decibel when the U.S. Supreme Court overturned California's Prop 8. Some people need to be informed that America is not a simple democracy; it is a Constitutional Republic.  That means that no matter what the majority wants, it cannot be granted if it oppresses the minority. That is, in large measure, what our constitution is for.

So, yesterday, when a federal judge struck down Utah's same-sex marriage ban, outraged local officials trotted out the canard that "the will of the people" had once again been overturned. It should be noted that when the 14th Amendment was passed, it became THE HIGHEST WILL OF THE PEOPLE, that the majority may not act to deny rights to the minority that they, themselves, enjoy. As state after state make same-sex marriage legal, largely on the basis of the 14th Amendment's Equal Protection Clause, it is inevitable that the Justices of SCOTUS will eventually make marriage equality the law of the land, if the rest of the states don't beat them to it.

The federal judge overturning the Utah state ban made it effective immediately, so same-sex couples began lining up for marriage licenses and the mayor of Salt Lake City (no less) performed the first legal ceremony in the state. This will not be without opposition from the powers that be. Both Utah's governor and attorney general are pursuing whatever legal options they have, but their prospects are bleak.

Whenever an unjust law is overturned by a judge, we hear the accusation, "activist judges!" Yes, indeed. These judges are actively defending the highest will of the people as understood in the 14th Amendment.

Today We Celebrate

America, thanks to the U.S. Supreme Court, made a giant step today in fulfilling the vision of our founding document, the Declaration of Independence, that all people are equal under the law. The federal Defense of Marriage Act's section 3 is found "unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment." By striking down DOMA, same-sex couples who are legally married are entitled to equal treatment under federal law.

The Court also issued its ruling on Hollingsworth v. Perry, ruling that the originators of Proposition 8 did not have the constitutional authority, or standing, to defend the law in federal courts since the state refused to appeal its loss in circuit court. This returns the right of all citizens of California to marry the person of their choosing.

Now 13 states and the District of Columbia have equal marriage rights coupled with federal protections and benefits. We achieved this, not through armed uprising, but by vigorous, relentless voicing of this indignity and revealing to the world that ours is a just cause. We have every right to rejoice in our good fortune. We also need to remember that others will be devastated.  Even though some in the opposition lied, cheated and bullied their way through the contentious decades of this struggle, many hold to such opposition out of sincerely held beliefs. All we have to do is recall our own feelings when things didn't go our way to understand how others may feel. This demonstrates what we have been saying all along: we share a common humanity. Gloating is reserved for those who don’t appreciate this. I am happy to say I have not observed anything but glee.

With marriage bans still in place outside of California, the struggle is far from over. We will continue the struggle in states without marriage equality until it’s achieved, with a great advantage. The example of California and the twelve other states with marriage equality will be enormous. The contrast of those states where all marriages enjoy all the federal and state rights and benefits will be stark. Pressure will mount as one state, then another, grants marriage equality. It will be hard to maintain old prejudices and the rigid confines of traditional marriage over time. People will see there really is no good reason to object any longer. 

So, today, we proponents of equality under the law, celebrate. These are huge victories, forecasting the future of America when all 50 states will have equal marriage rights.  This is inevitable.  There is no turning back.  But it will not be automatic; it will be won the same way we won today: person by person, state by state, ballot by ballot and legislature by legislature.

I'm off to San Francisco to join with The Religious Leader's Press Conference sponsored by the Coalition of Welcoming Congregations. As I said, today we celebrate!

Preparing for the Supreme Court’s Decisions on Prop 8 and DOMA

If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct…what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising 'the liberty protected by the Constitution?

~ Justice Antonin Scalia (This quote is taken from his minority dissent to Lawrence v. Texas when the court struck down sodomy laws)

First, America needs a civics lesson
Contrary to the National Organization for Marriage’s wishes and all others who were disappointed when California’s Proposition 8 was struck down, and feel abused, the people DO NOT get to decide what’s constitutional and what’s not. Fortunately, we live in a constitutional republic, not a pure democracy.  For in a pure democracy, if 51% of the people want to cut off the heads of the other 49%, for whatever reason, it would happen.  Our Constitution forbids majority coercion of the minority and in fact was created, in no small part, to protect the rights of the minority. So if, say, California passes a proposition that provides that “only marriage between a man and a woman is valid or recognized in California,” the fact that the majority of voters voted yes does not mean it passes constitutional muster.  The same holds true for DOMA. That’s why, for those who are opposed to marriage equality, DOMA is not enough and only a Constitutional amendment will do.

Ironically, if we were to let the people decide, as NOM would have it, the tide has turned and the majority of Californians and Americans are now in favor of same-sex marriage.  Given their favorable attitude toward LGBTs, when the Millennial generation assumes power, this will be a long forgotten era of American history.  Just as today when young people are told of Jim Crow and the struggle for Civil Rights, and they are mystified as how this could ever have been, so too will generations from now find it hard to believe that gay people couldn’t get married.

How DOMA and Prop 9 control the lives of LGBTs up to now
The federal Defense of Marriage Act effectively does two things. First, it defines marriage for federal purposes as between one man and one woman as husband and wife; and “spouse” refers only to a person of the opposite sex who is either husband or wife.  Second, it allows states the right to decline to recognize same-sex marriages that are legal in other states.

The federal General Accounting Office identified “1,049 federal statutory provisions classified to the United States Code in which benefits, rights, and privileges are contingent on marital status or in which marital status is a factor”. This shuts out LGBTs from all federal benefits accorded to opposite-sex couples, including income tax breaks, Social Security survivor’s benefits, and health care. The GAO upgraded the number of benefits to 1,139 in 2003.

In California, Proposition 8 is a constitutional amendment, passed in 2008, which said marriage defined as “only between a man and a woman is valid or recognized in California.” It overturned the California Supreme Court’s ruling that banning same-sex marriage is unconstitutional. There was a window from June 16 to November 5, 2009 when same-sex marriage was legal and these marriages continue to be legal and likely will not be affected by SCOTUS’s ruling.

Possible Supreme Court outcomes

Most court watchers count the possible outcomes as four or five, reducing the likely outcomes to three. They range in scope from total victory for marriage equality across the board, to the status quo remaining in place. We will look at each outcome from best to worst, at least in the eyes of supporters of same-sex marriage.

DOMA and Proposition 8 are both struck down
Marriage would become the legal right of every couple, regardless of sexual orientation. Although this is the least likely outcome, it is possible. It is, of course, the most desirable outcome for those of us working for marriage equality. The reality that no couple in America could be denied the full dignity and rights presently accorded only to opposite-sex couples would mean that LGBTs are no longer second-class citizens.
A narrow interpretation would restore same-sex marriage rights to California and confer federal marriage benefits to all legally married same-sex couples throughout America. It would not affect marriage bans in other states; they would remain intact.

DOMA struck down, but Prop 8 upheld
Legally married same-sex couples in California and elsewhere will begin receiving the 1,139 federal marriage benefits. However, same-sex marriage will not be legal in California as well as the other states with similar bans. Those Californians legally married in 2009 will most likely not have their marriages made null and void.

Prop 8 struck down, but DOMA upheld
With the demise of Prop 8, marriage equality will be reinstated in California, and may overturn similar bans in place in other states. However, legally married same-sex couples will be denied all federal rights and benefits related to marriage. Second-class citizenship will continue.

We may know the outcomes as soon as tomorrow.  When the decisions are made public, I will post a column on where we go from here.

(This post was adapted from my book, Marriage Equality: Why same-sex marriage is good for the church and nation found here: http://www.amazon.com/Marriage-Equality-Same-sex-marriage-church/dp/1484967127/ref=)