Extended Phenotype

 The discussion over same-sex marriage and Gavin Newsom has been lively in the blogging community this week.  Kevin Drum’s post this morning points towards the key reason why everyone ought to be concerned about this issue:  creation and defense of civil rights and freedoms is an ongoing venture.  I’m a straight white male, so why should I care about this issue?  The answer is simple.  The Constitution isn’t a rule book.  It’s a blueprint, which has to be interpreted anew by each generation.  That’s why it’s flexible and lasting as a “platform” for our society – if it spelled out specific “dos” and “don’ts,” much of its relevance would have faded by the mid-1800’s given changes in technology and society.  And so, in answer to those who ask “why now” on the issue of same-sex marriage, overturning Prop 22, and putting the FMA back in the waste basket:  there’s never a good time to define our civil rights because the job never stops. 

Many people in our society don’t support the right of same-sex couples to marry, or even to join in civil unions.  The country is pretty much evenly split on the issue, in fact.  Culturally, we can all understand why, as well.  A large percentage of the population seeks to follow social change wherever it leads; another equally large segment seeks a “return” to the traditional social structures associated with European Christian communities.  The problem with the second plan, of course, is that the country is not culturally homogenous. Whose notion of morality should win? The best we can do, ultimately, is interpret the Bill of Rights in such a way that people from all cultural backgrounds are treated equally.  The rights of fundamentalist Christians are equally as important as the rights of atheists, which should be equal to the rights of Arab-Americans, and so on.  

Nobody “wins” a culture war, and if history has shown us anything, it’s that anytime the majority acts to restrict the rights of minorities, as a people we come to regret it later on.  Today the issue is same-sex marriage.  Thirty-five years ago, the issue was racially mixed marriages – a right which today is uncontested nationwide in any public forum.  Yet in 1967, laws in 16 different states prevented interracial marriage.  Finally in 1967, the Warren Court struck down Virginia’s laws because they (and by extension similar laws in 15 states) violate the Fourteenth Amendment.  Chief Justice Earl Warren said it best in the majority decision in Loving v. Virginia:

We have consistently denied [388 U.S.1, 12]  the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. [case references removed for brevity] To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

How is this relevant?  Conservatives would likely say that the Fourteenth Amendment was part of a post-Civil War attempt to remove the effects of slavery on African-Americans, and doesn’t necessarily extend to sexual preferences.  Such a reading of the Fourteenth Amendment, however, relies on determining “original intent” rather than relying upon the text itself.  In this case, we can be as narrowly constructionist as we like:

“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.”

The Fourteenth Amendment does not say anything about race, nor does it exempt specific classes of citizens from equal protection.  It says, quite simply, that no state has the right to abridge the privileges of its citizens or deny equal protection of the law.  Today, the gay and lesbian communities are fighting for equal protection, just as thirty years ago, racially mixed couples had to fight for their marriage rights.  How does the argument in Loving v. Virginia not apply to same-sex couples?  Earlier, women had to fight for the right to vote.  Nor have white males been exempt from discrimination, if you go back far enough.  Until 1843, free men in Rhode Island were only allowed to vote if they owned land worth a certain amount.  It took Dorr’s Rebellion in 1841 to change this and bring the vote to all free white men.

Civil rights have never been automatic in any society, including our own.  Democracy doesn’t make civil rights automatic, it just makes them possible.  And the civil rights we deny one group today sets a precedent for denying any of us a right we cherish in the future.  To me, the best argument for supporting same-sex marriage, defeating the FMA, and overturning Prop 22 in California is this:  every right I help guarantee someone else is a step towards rights for all of us.