Homosexual Marriage on the American News Forum

My recent column on Gay Marriage in Massachusetts sparked a lot of combustion on the American News forum.  One reader, Henryj, addressed to me a rather lengthy epistle.  Here is my reply, which may be of interest to our readers. 

Dear Henry:

Your long post (ten pages, single spaced, in Microsoft Word) is too flattering to ignore. I am sorry I cannot reply in kind, but I do want to make a few points.

First, I think it was a bad idea to begin by insulting your readers and perhaps me. That approach may be proper in some cases, but one would have to be very sure of his footwork to use it. You say this:

For those on this forum who are lazy readers, go ahead and skip this post, as I do not appreciate your lazy arguments in favor of shorter posts. If you did your homework elsewhere before making such ignorant comments on the subject of gay marriage I would not feel obliged to bother with these long posts, but you don’t do your own homework. So, I need to at least provide you the information you are too lazy to seek out elsewhere. And if you disagree with my arguments, search out the truth on your own. But, please don’t come back to me with prejudicial arguments that have no basis in fact.

I am not sure whether those words are directed at me, or just at “lazy readers.” But the following is directly addressed to me.

In the future, I suggest you do a bit more historical homework on the subject. The same kind of ignorance and lack of historical perspective also comes out in your argument about the 14th Amendment I partly discussed above. Again you need to look at the history of the 14th Amendment and the cases in which it was utilized for personal rights and freedoms in America. In particular it was used against the role states played in the development of expanding business enterprises in the U.S. and the rights (and property) certain states allowed businesses to take away from certain parts of its citizenry.

Another one of its early roles was in the Dred Scot decision which mandated states to treat all their citizens the same. At the time of Dred Scot it specifically addressed blacks that did not have the same rights as U.S.citizens or residents of particular states that whites had been given by the states. For a particular state to codify or practice a different set of rights and benefits for one set of citizens that was contrary and different than it provided for a different privileged set of its citizens, the 14th Amendment said was unconstitutional.

I would point out that the case you cite is Dred Scott v. Sandford (not Dred Scot), and it certainly does not incorporate the 14^th Amendment, as the case was decided in 1857, before the Civil War, and the 14^th Amendment comes after the war. The Dred Scott case declared that freed men could not be citizens of the United States. I think you may have been thinking of Brown v. Board of Education, or maybe Plessy v.Ferguson, though I cannot be sure. Moreover, you use the term “activistic,” where I think you want to say “activist.”

These are minor points, to be sure, and they do not determine the substance of your case, but someone who neglected to check materials readily available by Google might want to avoid accusing others of ignorance and laziness.

As to issues of substance, you write:

You continue to use the rhetoric and tone perpetuated by the religious right in their arguments against same-sex civil marriages. Why would you use planks of their arguments against same-sex marriage if you were in favor? It makes no sense. For instance, you say same-gender marriage is not required under the Constitution. Here’s a newsflash for you. NEITHER is heterosexual marriage.

I reply that when I agree with you, that gay marriage is the right policy, I say so. When I agree with someone else, that gay marriage is not required by the Constitution, I say that. To say that an argument is invalid because of who uses it, that would be a classic ad hominem, a logical fallacy. As for your “newsflash,” I scooped you. I note in my column that the definition of marriage is not contained in the Constitution, but is sensibly left to the states. Maybe you missed that.

The heart of our disagreement is indicated in this paragraph of yours:

Despite your statement, the constitutional right to same sex marriage was not invented by Massachusetts. That is a statement that has no basis in fact and is solely an opinion. If you believe that statement, you do not believe gays anywhere have any right to marriage. Surely there are far better arguments for same-gender marriage than it being invented by Massachusetts

To the contrary, my statement has every basis in fact. Constitutions mean in the first place what they explicitly say. In the second place, we look to the tradition of interpretation in the courts and legislatures, and lastly comb the record of the persons who enacted the constitution. There are no grounds in any of these sources for a right to gay marriage, either on the Federal level or in any state. By contrast, it is clear from the language and legislative history of the Civil War amendments (13-15), that freed persons were to be given the full rights of citizenship.

I think you recognize this in your insistence on judicial activism.

The courts also need to be activistic in that they bring to the forefront those issues of injustice that have failed to be remediated in line with the Constitution by the other two branches. Since neither the Legislative Branch, nor the Administrative Branch at the state or federal levels are seeking to remediate injustices done to GLBT citizens, it becomes the rightful place of the courts to do so.

You want the courts to override the more democratic branches and write your political preferences into the text of fundamental law. I think this is short sighted. Imagine a court where five or six of nine believe that abortion is a violation of human rights. Should they declare abortion to be illegal in all the states, since “neither the Legislative Branch nor the Administrative Branch at the state or federal levels are seeking to remediate injustices”? Though I vehemently believe abortion to be wrong, I don’t believe that unelected judges should try to do any such thing.

The substance of your argument, and it does have substance, is that gay marriage is analogous to civil rights issues. I think this is flat wrong. Segregation divided citizens into discrete and insular groups. It inequitably distributed rights among them, and sought to keep them apart. Traditional marriage laws apply equally to all persons. No man can marry another man, whether he be black, white, heterosexual, or homosexual, just as no man can marry his sister, or any two men some third person. Moreover, bans on gay marriage certainly do not attempt to segregate homosexuals, since homosexual marriage does not involve “commingling,” as it was put in Plessy, between homosexuals and heterosexuals.

Your arguments, passionate and detailed to be sure, only add up to the fact that you want the courts to override the political branches, much as if a Cubs fan wanted the umpires to fix it so that their team could finally win.

Homosexual marriage would be a novelty. I think we should extend the institution of marriage to homosexuals because it would be good policy and, I suppose, good for the institution of marriage. But I think we should achieve that goal the old fashioned way, by earning it. I think such a process would be better for the public as a whole, and perhaps better for the homosexual community.