I wrote this a while ago as a longer and more in-depth reply to an argument about the decision in Maine to not legalize gay marriage back in November of 2009. A friend of mine had expressed his frustration (on Facebook) about the citizens of Maine having something taken away from them by the voters. I countered that the people of Maine never truly lost the "right" to gay marriage because they never had it in the first place, and that homosexual marriage is not a right. Over the next 6 hours I pitted logic, case study, and my wits against many of his friends that were just as frustrated (if not downright bitter and enraged) at the situation as he is.

After that little comment war about his status (which I fought completely from my iPhone), I decided to write out the argument I had in my head as if I were writing a paper. The end result was an approximately 10 page document that very closely resembled what you'll read below.

After posting my paper on Facebook someone mentioned that I should start a blog. At first I hated the idea; I don't mind being a quiet observer within the greater blogosphere, but if I were to create a blog I don't think I could keep it as interesting and professional as the ones I enjoy reading. I feared that I would put a large amount of time, energy, and focus on it for a few days and then let life come in and take over, leaving the blog as little more than a glorified version of my gay marriage paper.

Let's hope it doesn't come to that.

And now, for your reading pleasure, the paper that started it all...

There exists a cultural tug-of-war over the issue of same sex marriage (SSM).

It is an issue that raises both awareness and temperaments in our country,

as ours is a country based on the double edged strength of moral foundations

and the free willed voice of the people. Proponents of SSM argue for it on the
belief in rights to happiness and choice. Those against SSM use two
angles, moral tradition and religious beliefs, to counter SSM.

I will examine the issue from a third angle, one based in neither morals nor religion,
but rather in legality.

The following is a rebuttal to the three arguments most commonly used to make
SSM acceptable- though not necessarily legal- through blunt force,
manipulation, and sentiment. As of yet, I have only heard the following
arguments in favor of SSM, each of which will be examined in the following paragraphs.

I am not here to explore every available tangent of the topic. These are simply my thoughts.

"SSM is a (Civil) Right"

First, and perhaps most often, marriage has been called a right. A

right, per Merriam-Webster, is "something to which one has a just
claim". One does indeed have the just claim to the pursuit of marriage,
but by no means the legal right to unrestrained marriage, as will be

explained in the final section.

Civil rights, again per Merriam-Webster, are defined as "the
nonpolitical rights of a citizen; especially: the rights of personal
liberty guaranteed to United States citizens by the 13th and 14th
amendments to the Constitution and by acts of Congress".

In order to claim a civil right, one must have a legal or constitutional
basis for the claim. Both legal and constitutional civil rights are
protected through Acts and Amendments, passed by Congress or ratified by
the States, as has been deemed appropriate throughout history. There is
no sense in claiming a right that does not exist, and as a civil
right, there should be no comparison made between SSM and the subject.

Marriage is therefore not a right because it is not written into our
laws as one. If one were to examine the 13th Amendment one would note
the absence of the word 'marriage'. The same can be said for the 14th
Amendment. The 13th addresses the issues of slavery and indentured
servitude. The 14th Amendment directs that States shall not "deprive any
person of life, liberty, or property, without due process of law". Life, in
this case, is in reference to its loss (death); liberty, to its loss (imprisonment);
and property, to its loss (destruction or forfeiture). These are rights
because they are guaranteed to us as things not to be lost or taken at
the whim of the government, but only if deemed necessary through the due
processes of our laws (ie, the death penalty or imprisonment for
felonies committed). They are not things which are to be given to every and

anyone, at every and anytime. The key idea in the Amendment's sentence is the

relationship between the individual and what cannot be taken away by governing

forces. Legalized homosexual marriage cannot be taken away by the government

because the people never had it in the first place.

If one were to examine the Civil Rights Acts of 1866, 1964, and 1991 one
would note that the term marriage is once again clearly absent; indeed,
the Acts cover issues of employment and discrimination against citizens
on four grounds: race, gender, religion, and national origin. Sexual
orientation is absent. Nowhere in any of the Acts is the concept of
marriage mentioned as a right, fundamental or civil, nor is sexual orientation

mentioned as a factor to limit discrimination.
How can someone claim that the absence of gay marriage is a violation of his or her civil rights?

Comparing the "right" of marriage to black civil rights is akin to
comparing apples and orangutans. They are fundamentally different. Some
even liken the current struggle for SSM rights to the civil rights
struggle that took place in the 1950s and 1960s.

Such a comparison is not only arrogant, but is completely misguided.

When Messrs. Blair, McNeal, Richmond, and McCain
approached the lunch counter of the Elm Street Woolworth's in
Greensboro, N.C. on Feb. 1, 1960, they all sought something to eat. They
simply wanted what any white customer might want, and on precisely the
same terms - the exact same food at the exact same counter at the

exact same price. If the SSM movement were truly like the black movement,

it would want what any heterosexual would want, and on precisely the same terms-

the same marriage, at the same altar, at the same price. SSM does not want the

same thing as heterosexual marriage though. It wants something different.
It wants a different type of marriage that recognizes a different
coupling of people. Those rights pioneers of the sit-in and the others
that followed were not demanding that Woolworth's prepare or serve their
food in ways it had never been prepared or served before. There was no
attempt to redefine anything at that lunch counter. The four men were
striving to be included in a club (restaurant patrons) that they were
excluded from because of their melanin levels, not to change the rules
of the club (marriage) in order to suit their sexual preferences. As
history is to show, the rest of the Civil Rights Movement was conducted
to regain rights granted to black men and women that were
constitutionally guaranteed to them in the late 1800s and subsequently

denied by society to the middle of the 20th century. To restore the 14th
Amendment to its original purpose, to recreate the Civil Rights Act, to
return to black citizens the equality that had been stolen from them -
those were the great causes of the Civil Rights Movement. Homosexual
equality in marriage has not been constitutionally guaranteed to, nor
has society taken it away from, the gay community.

Homosexual preference has been likened by advocates of SSM to race,
gender, and religion as conditions that should be exempt from every form
of discrimination. Many pro-gay activists have complained that they are
tired of being treated like second-class citizens because they are not
allowed to marry on their terms. This is an egregious misconception.
Homosexuals are not in danger of the same discrimination that blacks
were in the 1960s. They are not beaten by police officers in our
streets. They are not attacked by trained dogs, nor are they assaulted
with water from a fire hose. They are not lynched. They are not forced
to drink from rusty pipes next to a straight man's water fountain.
They are not forced to give way to the heterosexuals and take their seat
in the back of the bus. Homosexuals enjoy the same opportunities in the private
work force that heterosexuals do, and are accepted to the extent in mainstream
society as much as a minority group can be. One is hard pressed to not see a
television show with an openly gay character, enter a book store without
openly homosexual literature, or find openly homosexual services,
organizations, and establishments advertised in the city's newspaper. Walk

down the street in any large city and you'll find gay clubs and gay couples.

There is absolutely zero grounds for comparison between homosexuals today

and blacks in 1950.

If being allowed to marry any person of any gender one chooses is the
litmus test for second-class citizenry, then homosexuals are indeed
second class citizens. Homosexual rights to marriage have never been
guaranteed to anyone by our government in any form at any time; the
claim that the absence of gay marriage dooms homosexuals to second-class

citizenry is baseless and arrogant.

Proponents for SSM have, and will, quote Zablocki v. Redhail as proof of
the legitimacy for their argument that marriage is a fundamental right.
I submit that the intention of the Court was not to redefine or expand
upon the definition of marriage (as it stood in 1977), for if so they
would have explicitly said so, but rather to show Americans that
marriage as it stands is something everyone has the right to pursue. The
Court did defend the privacy marriage as a right not to be intruded upon
by the government, as it had in Griswold v. Connecticut, but marriage as
it was defined when the rulings were passed. There was no intent to set
precedent to redefine marriage or allow it to be defined as anything
more than a legally recognized heterosexual union.

Kristin Perry, plaintiff in the case against Proposition 8 (Perry v.
Schwarzenegger), testified in the opening week of the trial that "The
state isn't letting us be happy". This is not a solid ground to argue
that civil rights are being denied, for no American has the guaranteed
right to be happy. It is the pursuit of happiness that is guaranteed,
for we are all free to engage in pursuit, but is not guaranteed that we
will achieve happiness. As Mr. Irving Kristol noted, "Democracy does not
guarantee equality of conditions- it only guarantees equality of
opportunity". SSM advocates have the right to an opportunity, an
opportunity pursue the success of their agenda, but they are not
entitled the right to have it succeed.

"To Prevent SSM is to Allow Unacceptable Discrimination"

Those in favor of SSM will advocate its legalization on the basis that
not to do so would be discriminatory. They are correct. However, before
you assume concessions will be made, I submit that marriage is already a
discriminatory institution for reasons that are not related to sexual
preference. A man is not free to marry his niece, nor can he marry his
first cousin- regardless of gender. A woman is not free to marry a man
in prison, nor may she marry a 14 year old boy. Someone who is single is
by no means free to marry someone already married, someone who is
incapacitated, as in a coma, or someone who is mentally retarded.

If marriage is at present a discriminating institute, the type of
discrimination against those who wish to participate in SSM must be
defined. I submit that it is discrimination based not on sexual
preference but on gender. Because such discrimination is not in relation
to employment or loss of specific rights guaranteed by the law, it does
not violate the Civil Rights Act of 1991 or any Amendment.

If discrimination against SSM is indeed discrimination based on gender,
it must then be asked if such discrimination is lawful. Indeed it is.
The Supreme Court's decision in Rostker v. Goldberg held that it is
lawful to discriminate based on gender because doing so did not violate
the due process clause of the 5th Amendment . Marriage, as it stands,
has no relation to the concept of due process. The intent of the ruling
was not in conjunction with marital issues, it is true; however, because
the court uses prior rulings as instructions, guidelines, and even a
form of "law through opinion", it can be argued that the decision to
support discrimination based on gender can be applied to other
situations.

Discrimination based on gender is acceptable in a multitude of areas,
especially concerning public or state run services. A man is not allowed
to use a women's public bathroom; men and women are screened by their
respective genders when private inspections are required for airport
security; men and women are segregated by gender when incarcerated, both
federally and locally; men and women are not allowed to room or board
together at military colleges (see West Point, Annapolis, USAFA, VMI
etc) and military barracks; and, as show in Rostker, men and women are
treated discriminately, based on gender, with requirements for draft
registration.

Marriage, then, does discriminate against homosexuals. What it does not
do is discriminate against them because they are homosexual; their
gender, not their mental preferences, is the target of discrimination. A
homosexual man is indeed free to marry; but he is free to marry a woman,
just as any other man is. What he is not free to do is marry another man
because he himself is a man. This, by definition and form, is
discrimination based on gender. The man is not shunned, denied
employment, or jailed for his orientation, for he may do whatever he
pleases with another man behind the privacy of closed bedroom doors. He
is simply denied marriage to another man because he is not a woman. As
previously explained, marriage is allowed to discriminate against
male-female couples on the basis of sanguinity, criminality, legality,
numbers, and mental fortitude. No advocate for SSM I have met yet has
refuted or argued against any of these reasons for discrimination. Thus,
since the highest court in the land has ruled that it is acceptable to
discriminate on the basis of gender in some cases, I argue that gender
discrimination is legally allowed to assume rank and file with other
marriage discriminations. By its longstanding and current American
definition marriage is an example of a case where discrimination is
accepted.

"SSM Is Needed to Protect Minorities"

When the above two arguments fail, an advocate of SSM will often resort
to the minority defense. The strength of such an argument is fortified
by the belief that the majority has no right to "rule" a minority, and
the "rights" of the minority should be protected from tyranny by the
judicial system. The "rights of the minority" belief gives explanation
to the plaintiff's argument in Perry v. Schwarzenegger; Ms. Perry, a
member of the minority- for SSM advocates and homosexuals are indeed the
minority- must have her rights protected by the courts regardless of
what the majority says, votes, or does. I find this argument frustrating
and cowardly, for it is not only flawed by hypocritical.

In 1996, the Congress passed the Federal Defense of Marriage Act (FDMA),

and the Executive signed the legislation into law. The Court did not comment

on the legislation. Such legislation defines marriage in the eyes of the federal

government as "only a legal union between one man and one woman as husband

and wife, and the word "spouse" refers only to a person of the opposite sex who

is a husband or a wife".

It also grants the following provision to States:

"No State, territory, or possession of the United States, or Indian
tribe, shall be required to give effect to any public act, record, or
judicial proceeding of any other State, territory, possession, or tribe
respecting a relationship between persons of the same sex that is
treated as a marriage under the laws of such other State, territory,
possession, or tribe, or a right or claim arising from such
relationship"

This is not merely a statement of the opinion of the federal government,
but an actual law, essentially leaving the final decision on the subject to

the discretion of the States. The FDMA does two things:
first, it clarifies the federal government's position on the issue, and
second, it gives the States the ability to not recognize the actions of
another State regarding the issue. This decentralizes legal
responsibility for accepting SSM and allows any State to decide on the
issue for itself. Such a provision is clearly and plainly constitutional
as it follows the guidance of the 10th Amendment: "The powers not
delegated to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to the
people". Because the definition of marriage is not mentioned anywhere in
the Constitution, it is therefore not a power delegated to the federal
government and is reserved for the States and their people. This does
not, however, mean that the FDMA is invalid, for it is indeed acceptable
and even necessary for the federal government to have an opinion on
the issue.

This is the point where the concept of majority is shunned by advocates
of SSM, but not where it must be disregarded. In order for SSM to be
outlawed in a State, it must be made so by either legislative or popular
vote. In order for SSM to be outlawed, the decision must come from a
majority of either legislative or popular voters. If SSM is outlawed in
a State, it must be because those whose power it is to vote have made it so.
As of now, only six states (Vermont, Connecticut, Massachusetts, New Hampshire, and Iowa)
have legalized SSM. New Jersey and Washington have not legalized SSM,
but grants similar rights to homosexual couples. New York, New Mexico,
and Rhode Island are indifferent. All other states, 40 in total , have
either statues or constitutional amendments not recognizing SSM. That
means 80% of States in the Union, a clear majority, have
given the vote to either the people or their duly appointed legislators
and have decided not to legalize SSM.

If one were to mention this statistic to an advocate of SSM, he or she
would hear a disgusted claim to repression by a tyranny of the majority
and an explanation that such tyranny of majority exists because a
majority of the people does not approve a right for the minority. As
previously mentioned marriage is not a right- nor is the redefinition of
marriage a right for the minority to exercise.

How, then, would one define tyranny?

If every instance where the minority (be it a single

individual or a group) disagrees with the opinion of the majority it can
be called tyranny, then you have the tyranny of the minority; or, the
will of the minority imposed on the majority. This is what is happening
in California. A minority, dissatisfied with the voted opinion of the
majority, is attempting to circumvent the issue and seek recompense
through judicial fiat. The minority is attempting to find a favorable
judicial ruling in order to show that their interest is more important than

the legally and properly voiced will of the majority.

James Madison, in Federalist 58, said:

"In all cases where justice or the general good might require new

laws to be passed or active measures to be pursued, the fundamental

principle of free government would be reversed. It would be no longer

the majority that would rule; the power would be transferred to the minority...

a practice which leads more directly to public convulsions and the ruin of popular
governments."

Even President Franklin Delano Roosevelt, a progressive
and a socialist Democrat, said in an address at Roanoke, NC, August 18,
1937 that "majority rule must be preserved as the safeguard of both liberty
and civilization". It is voice of the majority that makes the laws of
our country, be it local or federal, not the opinion of the minority. It
is said that we are not a true Democracy, and that mob rule is not
acceptable in our nation. This is correct; America is not a true Democracy.
What we are is a constitutional Republic. Such a Republic, per Merriam-Webster,
is "led by a government in which supreme power resides in a body of
citizens entitled to vote". The will of such a body, through majority
decision, becomes the law of the Republic.

We, as Americans, would not have endured to the length that we have had
we not respected the voice of the majority so long as our legislators,
our executives, and our judges found that such a voice was not illegal,
immoral, or inhuman. Denying SSM is not immoral, as morality constitutes
the bulk of most arguments on the subject- both for and against. Denying SSM
is not inhuman, as it does not degrade the humanity of homosexuals (see
previous section). Denying SSM is not illegal, as there are no laws
making it so, and the decision of legality is left to the individual
opinions of the States.

Conclusions

The bulk of the preceding argument can be made summarily in three
points. First, that marriage is not a right, nor is it a civil right, as
it is not guaranteed by any Amendment or Act that defines rights
guaranteed Americans. Second, that to not legalize SSM is
discriminatory, but discriminatory in a manner that the highest court in
the land has found acceptable Third, that were the first two points to be
overlooked, the final decision is in the hands of the States and the voters
therein. It is not for any minority to tell a majority whether or not its voice
is valid, but for the voice of the majority to be the deciding factor on issues.
Such a condition that allows the minority to dictate the outcome of an
issue would certainly lead to a tyranny- but a tyranny of the few over
the many.

Perry v. Schwarzenegger is an example of hypocrisy and manipulation by
the advocates of SSM, not their opponents. The advocates of SSM, having
been granted their right to pursue the defeat of Proposition 8 through
legal means (the ballot box), have found their loss through due process
(under California law) to be unsatisfactory and have decided to
circumvent the people's authority and seek a decision tailored to their
liking through judicial fiat. A ruling in their favor would in essence
be telling the people of California that due process is to be
disregarded, their opinion does not matter, their beliefs are
irrelevant, their votes have no effect, and it is the opinion of the
minority that is to be valued and validated over the decision of the
majority.

What, Then, to Do?

Can SSM be made legal? The answer is yes. The caveat to this is that it

can only be made legal if the proper legislation is passed at the proper levels.

In order to accomplish this, a majority of voters (be they individuals, representatives,

or States) must decide that they want SSM to be legalized.

The current strategy to legalize it, involving the manipulation

of definitions, demonizing opponents, and seeking judicial sympathy, is
incorrect and deserves to fail on its own merit. What should be done to
legalize SSM is to make it law; not "law" stemming from a court's
opinion, but law coming from majority decision. Should the decision
be made by the federal legislature to keep the issue on the level of the
States, SSM must be made legal in the correct manner in each State
according to the laws of that State. No State must be made to accept
something against the wish of a majority of its residents. If, however,
nothing less than nationwide acceptance is desired by the gay community,
then SSM must be made legal through federal law. This requires, as
previously stated, a majority. SSM advocates must convince a majority of
the Congress to pass appropriate legislation specifically saying that
SSM is to be made legal. If federal legislation is not a solid enough
guarantee, then a constitutional amendment would be in order- again,
requiring the majority of the States (something the SSM movement clearly
does not have right now) to ratify such an amendment.

If the SSM movement truly wishes to liken its efforts to those of the
Civil Rights Movement, then the outcome they seek should be acceptance
of SSM written, endorsed, and enforced by the federal government in such
a manner that civil rights were. If the gay community seeks acceptance
by the States instead, then they must obey the decision of those States.

Both sides of the proverbial fence must wait and see how the course of history unfolds.

Future generations of voters have the potential to warm to the tenets of SSM and may

vote to overturn bans and statues barring such a change in marriage. Conversely, future

generations may become more protective of the current definition of marriage and may

choose to overturn amendments and statues that have thus far legalized or recognized SSM.

If one were to tell a room full of British historians in 1920 that exactly two decades later

Luftwaffe bombers would be bombing London block by block, he would be laughed out of the room.

We cannot predict the future.

Neither side can make an accurate or assertive claim to how the issue will be resolved.

What is known, and what must be affirmed, is that the issue is in the hands of the people

and the majority of the people do not wish to accept SSM, for whatever their reason may be.

Should SSM be legalized, it would need to be done in a manner both legal and fair;

Congressional legislation, Executive approval, Court support, and State sponsorship- each

of which require a majority in some form or fashion. As it stands, no single category has

completely embraced SSM. That decision must be upheld and respected until such people

see fit to overturn it.

If Maine and California had voted to legalize SSM, the gay community would be telling

their opponents to accept the decision because it is the true will of the people. Why should the

same not be said when those people choose to define marriage as one man and one woman?

A Modern Major-General: Some Musings Categorical

So...what do you think?

Saturday, September 4, 2010

A Few Rules for Life

Gay Marriage