HOOS IN CHARGE?
Preface: I’m not in charge of much of anything anymore, but
I like the blog’s name, so I’m keeping it, and I am, indeed, a Wahoo for
life! I am in the last month of a
self-imposed gag order following my 24 vote loss for re-election to a 3rd
term as Mayor, and am itching to comment (as a private citizen/resident) on local
community issues. But, we’re not there yet. There are other things to comment
on. Things like fundamental changes in American society.
I have been giving a great deal of thought to the issue of
same sex marriage lately, and knew when SCOTUS (Supreme Court of the United
States) accepted the case to review it would be a hot button matter. Decisions
from several of the Circuit Courts of Appeal were direct opposites, and those
are the kinds of cases SCOTUS often hears – to try to bring uniformity into the
Federal Courts. The late (and great, in my opinion) Judge John Heyburn in the
Western District of KY decided that KY’s ban on same sex marriage violated the U.S.
Constitution, but then held his decision in abeyance while it was appealed. The
Sixth Circuit reversed him. SCOTUS affirmed Judge Heyburn’s decision. May he rest in peace.
Several months ago I had the privilege to assist a woman in
a parenting matter who was legally married to another woman in a state that
issued same sex marriage licenses. They were local residents and the parenting
dispute was with a third person. I became more acutely aware of the status
these folks face in the KY court system and of KY appellate decisions touching
the subject. I think it safe to say that many of my brother and sister officers
of the Court of Justice in this Commonwealth were waiting for the ruling and
are not shocked.
This is my take on the issue. It is not necessarily my religious
belief. It is my lawyerly belief. And while not pretending to be either a religious
scholar or Constitutional scholar, I know enough about both to form opinions.
In my opinion . . . . . .
The Bible, written by humans, inspired by God, assembled by
committees, and refined through the ages by scholars, tells us that God created
man then, from a man’s rib, created woman to be the man’s companion. A man
shall leave his father and mother and ‘cleave unto his wife; and they shall be
one flesh.’ Genesis 2:24. The betrothed make a covenant to each other and to
their community and is divinely blessed. Many of us believe marriage to be embraced
and preferred by our religion. The Bible, however, discusses many aspects of
relationships. For instance, David and Abraham, pillars of Judaism and
Christianity, practiced polygamy. Traditional monogamy is, obviously, a main
subject of discussion, but more unusual topics as celibacy and castration are discussed
as well.
There are some who argue that our society must avoid
using ancient biblical texts to influence today’s morals, as there are texts that
endorse other social institutions, such as slavery. This writing is not meant
to be a study in theology. Instead, my point is that ‘marriage’ has many
meanings in diverse cultures, including the Judeo-Christian culture in which I live.
What individuals believe in the USA depends in
large part on how they were raised, what form of religion they identify with
and how their communities have influenced their beliefs over the years.
Had the institution of marriage remained the sole province
of religion, there would not be the uproar we experienced this week. Everyone
would be free to marry or not as their beliefs dictated. Their religious institutions
would influence and, perhaps, control their individual actions. The institution of marriage did not, however,
remain in the province of the church, mosque, synagogue, temple or whatever.
Laws were enacted.
Faith, beliefs and spirituality is one thing. Law is
another. Our country’s founders did their best to make sure this country would
be governed by the rule of law, not by the whim of a monarch. They also did not
want religious leaders to enforce their particular beliefs on all of the
people. Many had been there and done that with experiences in certain
protestant denominations, the Church of England and, of course, the Roman
Catholic Church. The founders tried their best to allow people to believe what
they choose, to worship how they choose, but not to impose these beliefs and
faiths on all the people by force of law. When the Constitution was written,
some states had already embraced particular denominations as the ‘official
religion’ of the state.
The framers of our United States Constitution set up a
3-part government - executive, legislative, judicial – to ensure a balance of
power with one part being a check on the other. Legislators write the law, the executive
enforces it and judicial branch interprets it. A main source of contention in
political rhetoric is and always has been the distinction between Courts and
Judges writing the law and interpreting what the written law means and is to be
applied. Think Marbury v Madison –
Google it if necessary. Judicial review.
Article IV, Section 1 of the Constitution states: Full faith and
credit shall be given in each state to the public acts,
records, and judicial proceedings of every other state. . . Section 2 states: The
citizens of each state shall be entitled to all privileges and immunities
of citizens in the several states.
Wary of the excesses of monarchy from what they had recently
escaped, and cognizant of the influence of the clergy, the newly independent people
of this country then adopted a series of 10 amendments that addressed many of
these excesses. The Bill of Rights was a set of principles
restricting what the central government could do to the individual.
The 1st Amendment states: “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press, or the right of the people
peaceably to assemble, and to petition the Government for a redress of
grievances.”
The 10th
Amendment states: “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.”
In 1802, a mere 11 years after the Bill of Rights were
adopted, Thomas Jefferson wrote this in a letter to the Danbury Baptists, a
group concerned with the dominance of the Congregationalist Church in
Connecticut:
Believing with you that
religion is a matter which lies solely between Man & his God, that he owes
account to none other for his faith or his worship, that the legitimate powers
of government reach actions only, & not opinions, I contemplate with
sovereign reverence that act of the whole American people which declared that
their legislature should "make no law respecting an establishment of
religion, or prohibiting the free exercise thereof," thus building a wall
of separation between Church & State. Adhering to this expression of the
supreme will of the nation in behalf of the rights of conscience, I shall see
with sincere satisfaction the progress of those sentiments which tend to
restore to man all his natural rights, convinced he has no natural right in
opposition to his social duties.
As indicated
before, and nonetheless, some states established official religions and gave
other denominations privileges and rights others were denied. They argued that
the 1st Amendment applied only to the federal government. Applying
this concept to the extreme one state could make the Roman Catholic Church the
official state religion and in another the Southern Baptist Convention, while a
3rd state could make Buddism official. Imagine the chaos! (Think, in
modern terms, of Sunni vs Shia Muslim denominations.) In 1947, SCOTUS issued an opinion interpreting
the application of the 1st Amendment to the states.
Justice
Hugo Black wrote for the majority (of, again, a divided court – not a novel
concept) in Everson v Board of Education:
"The 'establishment of
religion' clause of the First Amendment means at least this: Neither a state
nor the Federal Government can set up a church. Neither can pass laws which aid
one religion, aid all religions or prefer one religion over another. Neither
can force nor influence a person to go to or to remain away from church against
his will or force him to profess a belief or disbelief in any religion. No
person can be punished for entertaining or professing religious beliefs or
disbeliefs, for church attendance or non-attendance. No tax in any amount,
large or small, can be levied to support any religious activities or institutions,
whatever they may be called, or whatever form they may adopt to teach or
practice religion. Neither a state nor the Federal Government can, openly or
secretly, participate in the affairs of any religious organizations or groups
and vice versa. In the words of Jefferson, the clause against establishment of
religion by law was intended to erect 'a wall of separation between Church and
State.'" 330 U.S. 1, 15-16.
The 14th
Amendment, adopted in 1868 as this country was recovering from and adjusting to
life following the Civil War, states: “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.”
So, the rule of law teaches
us this:
1.
Kentucky cannot pass a law to prefer one
religion over another or one set of religious beliefs over another.
2.
One man-One woman marriage is a concept based on
some Judeo-Christian beliefs.
3.
Kentucky law that permits opposite sex couples
to obtain an official recognition of their marriage – a marriage license - yet
denies that same privilege to same sex couples is law that prefers one particular
religious belief.
4.
Kentucky law that permits opposite sex marriage licenses
and denies same sex licenses denies to same sex couples living in the
jurisdiction of Kentucky equal protection of the law, violating the 14th
Amendment.
5.
Kentucky Law that refuses to recognize same sex marriages
performed in a state where it was legal (such as NY) and refuses to give those
couples the same rights and privileges KY law affords opposite sex couples with
a marriage license violates Article 4, Section 1 of the US Constitution by
refusing to give full faith and credit to the law of the other state, and
Section 2 by denying KY citizens the privileges and immunities of other states.
6.
The 10th Amendment reserving powers
to the states not delegated by the Constitution does not apply because the
Constitution delegated the power to prohibit state religious preference to the
US, and the power to enforce equal protection of the law to the US.
Therefore, I was not surprised by the SCOTUS decision in Obergefell v Hodges, et al. Our
Constitution was written for people having fundamentally different beliefs on
topics of importance to them. While our Constitution does not adopt one theory
of marriage, it does give all people the right to equal protection of the law,
and denying one group a license afforded to another group does just that – it denies
equal protection.
Had I been a member of SCOTUS, I would have voted with the
majority.
That is my opinion, for what it is worth.
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