(this body of text is meant to be academic in nature. i want clear and public and explanation where I stand on the issue of constitutionaly and the religious institution of marriage. i do not believe in it. marriage is a failure.)
The American Government is legally endorsing a religious instution. In a bafflingly complex and noxious concoction of government, religion, activism and law – the cultural conflict regarding same-sex marriage is being waged with no end in sight. One side wishes to protect their freedom of religion. One side wishes to enact legal equality for all citizens. Certainly these ambitions do not interfere with one another... right? They most certainly should not. However, the current state of this intense conflict has “divided the house against itself” and we are currently answering the question; “will this house continue to stand?” If America wishes to maintain its integrity both as a free and equal Republic – it will require a civil and legal resolution regarding the state's stance on same-sex marriage. The battle will be fought and decided in the mire of legality. However, it will be laser-like honesty about one's identity and cultural inclinations that will begin to mend the wounds of both parties to bring about a healing resolution. It will require both sides to understand how religious, sexual and national identity interact – specifically in America. Only through communication and understanding of these concepts (on a legal / national level) will this conflict ever hope to be solved. The history of gay-marriage in California, and marriage in general, can best be introduced by evaluating the events surrounding early interracial marriage. As an issue of constitutional legality – the relationship between both types of marriage are inseparable.
California was admitted into the United States during the compromise of 1850. It was decided that California would be a free state in which slavery was prohibited. However, at this time, the State Legislature enacted a statute saying "all marriages of white persons with negroes or mulattoes are declared to be illegal and void.” The marriage of a white person to any of the “lesser” races was known as “miscegenation” and was considered a crime. Later, in 1872, the California Civil Code expanded racist bans on marriage, stating: “All marriages of white persons with Negroes, Mongolians, members of the Maylay race, or mulattoes are illegal and void.”1 It would not be until 1948, after two World Wars, that a black and a white could marry legally. This decision was reached by “activist judges” in California, the first state to recognize the violation of the 14th Amendment of the Federal Constitution. This case is known now as the “Perez v. Sharp” case and was the basis for which Proposition 22 was overturned in the 2008 Supreme Court. The 14th Amendment to the Federal Constitution was ratified during the post-civil-war period (1868) in an attempt to secure the rights of former slaves.2 The 14th Amendment Reads: “Section 1. 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.”
Before the cultural conflict of Proposition 22 in the year 2000, little can be found on the relationship between the 14th Amendment of the Federal Constitution and that regarding the institution of gay-marriage. In 1977, The California Civil Code (mentioned earlier), Section 4100 (which is now known as the Family Code, Section 300), was amended to read that marriage is "a personal relation arising out of a civil contract between a man and a woman.”3 California Ballot Initiative 22, which passed with 61% of the popular vote, then amended the California Family Code to define marriage as a union between a man and a woman. It would appear that these two statements in California's Family Code are redundant. However, intent is key. In 1971 there was a legislation to amend California law to be gender neutral. This created a legal gray zone that Proposition 22 made, very clearly, black and white again. Schwarzenegger would later veto two separate assembly bills, making it legal for same sex couples to marry, based on the passing of Proposition 22. He vetoed both on the basis that passing an assembly bill in opposition to a voter initiative was unconstitutional, and the nature of the constitutionality of Proposition 22 had yet to be decided by the Supreme Court.4 The Supreme Court answered Governor Schwarzenegger in 2008 by ruling Proposition 22 to be unconstitutional. This was on the basis of its violation of the 14th Federal Amendment and the former ability of the courts to overrule antimiscegenation laws during the Perez v. Sharp decision half a century earlier.
In 2006 appeals were sent to the Supreme Court to review the constitutionality of Proposition 22. The Supreme Court ruled unanimously that it would review the six specific pending cases. This specific review and the cases that pertain to it are known as the “In re Marriage Cases.” A 4-3 decision was reached in May of 2008 and its holdings were as follows:
“(1) Gay men and Lesbians are commonly subject to biased treatment that has no basis upon their ability to be a contributing member of society. Therefore, sexual orientation, like race, religion, or gender, is a suspect class for purposes of the Equal Protection Clause of the California Constitution. This suspect classification requires that the highest level of scrutiny be applied to laws potentially infringing upon the rights of these persons.
(2) Under the above standard the statutory denial of marriage licenses to same-sex couples is unconstitutional.”
A Writ of Mandate was issued June 19th, 2008 by the Superior Court to all County Clerks and the State Registrar of Vital Statistics. This effectively declared both the California Family Code 300 and Proposition 22 unconstitutional and, consequently, removed it from law. The conflict was far from over. The stage was set for the most expensive campaign battle of the entire 2008 election – the only exception being the race for President.6
With a stage set for a truly epic battle of politics, law and religion – there (at least in American tradition) must be warriors and adjudicators to bring about a conclusion. And although there is no current “conclusion,” to the cultural conflict of same-sex marriage, the key players can best be understood as those who participated most vigorously in the recent November battle over Proposition 8 (ballot initiative to amend the California State Constitution to define marriage as between a man and a woman) Government plays a particular role in this conflict. All three branches of the California state government have been important stops in the journey for or against same sex marriage. However, as mentioned earlier, both Arnold Schwarzenegger and the Supreme Court are primarily concerned with the due process of law concerning the entire issue. If anything, Schwarzenegger has taken action to ensure that the California Supreme court would be forced to rule on the initiative. He assured this, as mentioned earlier, by vetoing the Assembly Bills that would recognize same sex marriage. Once Supreme Court ruled on behalf of same-sex marriage – Schwarzenegger issued a statement that he would defend the courts decision.6 Schwarzenegger would later speak out against Proposition 8, as the voter initiative threatens the long-standing institution of Judicial Review.
ProtectMarriage.com and Equality for All (NoOnProp8.com) were the two organizations through which most of the seventy three million dollars were funneled during the election season.
The most visible proponents of Proposition 8 were the Roman Catholic Church and the Church of Latter-day Saints. The California Catholic Conference issued a statement strongly urging parishioners "to provide both the financial support and the volunteer efforts needed for the passage of Proposition 8."7 In addition, The First Presidency of the Church of Latter-day Saints issued a statement that was to be read at “all congregations” on the 29th of June, 2008. The religious / cultural stand-point is well stated in the announcement: “The Church’s teachings and position on this moral issue are unequivocal. Marriage between a man and a woman is ordained of God, and the formation of families is central to the Creator’s plan for His children.” Then, “Local Church leaders will provide information about how you may become involved in this important cause.”8 Utah provided 45% of the out of state contributions to support the initiative, more than three times the amount of any other state.9 This is not to assume that all Mormons and Catholics agree – but there is reasonable evidence as to why many churchgoers would be opposed on the basis of religious identity.
The most visible opponents of the measure were Apple, Google and the Episcopalian Church. Google announced publicly against the measure as an issue of fundamental equality – rather than law. “However, while there are many objections to this proposition... it is the chilling and discriminatory effect of the proposition on many of our employees that brings Google to publicly oppose Proposition 8. While we respect the strongly-held beliefs that people have on both sides of this argument, we see this fundamentally as an issue of equality.”10 Apple issued a statement as well and donated one hundred thousand dollars against Proposition 8.11 In addition, the Episcopalian Church's top bishops publicly opposed 8. Episcopal diocese John J. Bruno opposed it both on the issue of morality and its constitutionality.12
But, the real players are the people. Unlike other voter initiatives, Proposition 8 did not serve to change public transport, food quality, spending, jobs or prison sentences. Nonetheless, it was the most expensive – by far. Why? The answer has to do with ideologies and cultural conflict at its absolute modern pinnacle. The role of marriage, religion, biology, church and the fabric of American federal and state government are all currently being called into question. All over same-sex marriage. Odds are you subscribe to some institution, church or service that is involved in the conflict. But why? Why is the issue of same-sex marriage so hot and pervasive? It is because there is a lot of cultural dynamics at play, and America has no shortage of divergent cultures.
Marriage is, for all intents and purposes, what is “at stake.” The fact that by allowing same-sex marriages you would not be amending a legal status of heterosexual couples says that this is an issue of integrity and identity. Marriage, as an institution, unlike civil unions, does allow for the filing of joint tax returns and other federal benefits. This makes marriage an institution founded in law and economy. However, marriage is also a deeply religious topic. Many American weddings are Eucharistic in nature, or, pertaining to the blood and the flesh of Christ. To some with a Christian Religious Identity, marriage represents the union between Christ and the Church. Ephesians 5:29-5:32 states an implied nature of marriage being between a man and a woman – and that marriage is really representative of Christs' relationship with the church. If one aspires to become more like Jesus – it can be argued that a “straight” marriage is the best way to show one's commitment to the faith. For one who identifies with the history of their Christian faith – it would be strange to even suggest that a man and a man or a woman and a woman get married. As with sacrament, the history of marriage is quite literally ancient. It is a fear that religious locations that can be rented out for marriages would be forced, under equality laws, to allow gays to marry as well. In a sense, this imposes on “what it means to be a Christian” and is, in some ways of thinking, infringing on a religious freedom. A fundamental change to marriage is, in a way, seen as a change of identity, religious identity specifically. And quite clearly, freedom of religion is primarily guaranteed to all Americans in the First Amendment of the Federal Constitution.
America was founded on Judeo-Christian values. In Genesis, all people were created equal (in His image) by God. In America, we take “God Given Rights” very seriously – even for those who do not “believe” at all. Exodus speaks about the Israelites fleeing from tyranny and slavery to freedom and prosperity. In our schools, we teach that slavery is wrong and that America gained its freedom through bloody revolution against a King. After all, America is not about “kings.” It is about “law.” Following these “laws” or “Commandments” are the basis on which all issues in America truly grind. Through the Protestant reformation and the printing of English bibles – a tradition of “learning to read” was introduced to America, and a “right to education” became an important value.13 So, it is reasonable to assume that the LGBT community has also internalized the ideals of equality, God given rights (granted by law), freedom from tyranny and the broad concept of democratized education. In short, when the proponents for same-sex marriage are holding up signs that say “unfair and wrong” they are appealing to the exact same Judeo-Christian values that the opponents of same-sex marriage appeal to. They are simply different interpretations of their own Judeo-Christian values.
Keeping in mind that the Lesbian, Gay, Bisexual and Transgender “movement” also identifies with Judeo-Christian values – it makes this conflict one where both sides are having their identity threatened. While it would be unfair to say that their “religious” identity is being threatened – it would be fair to say that their identity as democratized, nationalized American citizens is under attack. Being “excluded” from what the Constitution defines as “the privileges or immunities of citizens of the United States” quite clearly implies that they are NOT citizens of the United States. At best, this makes “them” something akin to “second class” citizens. A person on this side of the conflict is left to wonder: “if I am legally being treated as a second-class citizen, what other fundamental and God given rights am I to be excluded from?” This question hearkens back to Jane Elliot's collar of hegemony. Why is it that “being a man” is a compliment and being “gay” is an insult? Why, in the event of Proposition 22 being over-turned, were the judges being called “activists?” A supreme court judge has one purpose; to interpret the Constitution. Would the result of calling a black judge an “uppity” judge be any different?Does our language reflect a bias against homosexuality? The proponents of same-sex marriage are forced to ask these questions because there is valid suspicion that these “norms” are influencing their ability to call themselves “first rate” citizens of the Judeo-Christian United States. This bias is reflected in law. There is evidence to suggest that, according to Hofstede, our traditions (including “traditional marriage”) in America, have helped forge a nation that is inclined to have a more distinct and separate role for men and women in society. The text sites communications scholar Julia T. Wood as having identified the separation between gender expectations in America. Women are expected to take into account their appearance, be sensitive and caring, except negative treatment by others and be a “super-women.” Men are expected to NOT be female, successful, aggressive, sexual and self reliant. Beauty magazines advertise and sell make-up to women, reinforcing the norm that women must both wear make-up and look beautiful. Commercial culture would have women believe that being thin, white and youthful is a valuable identity. Jane Elliot addresses these cultural norms when she emphasizes “forget cute” as “cute” and “girlish” qualities are both a norm and a weapon used against women to keep them in a child-like mind state. These are qualities of American society that should be observed when regarding the supposed “activist” nature of the judges that overturned Proposition 22 – as it the lack of gender bias and the purely legal nature of the issue that earned the four judges the title of “activist.”
The same-sex marriage battle has also brought the issue of Hofstede's cultural dichotomy between power and distance to the forefront. John McCain supported California's constitutional ban on gay marriage, stating: “"I support the efforts of the people of California to recognize marriage as a unique institution between a man and a woman, just as we did in my home state of Arizona. I do not believe judges should be making these decisions.”14 In essence, John McCain, who opposed a Federal Amendment banning gay marriage (on the basis of state's rights) is addressing the distance between the “people” and the “power” - asserting that the courts should not infringe upon the democratic process of voter initiatives like Prop 22. After all, a Federal ban of gay marriage would be an entire continent between California and where the power to amend the law is located. California Judicial Review, though a long-standing balance-keeper, is still placing distance between people and the power. By assuring the power is located in the ballot-booth, you are assuring a minimum distance between power and those governed according to Hofstede's continuum. As noted earlier, Schwarzenegger indirectly proposed to keep power located far from the people, in the court system. As both politicians are self proclaimed Christian Republicans – their policies still differ on a hot-button issue based on each respective politicians inclination to support a different outlook on the relationship between Hofstede's power and distance.
One is left to ponder: “So, if both of the primarily disagreeing sides share Judeo-Christian values, why is it so hard to come to a conclusion in which both parties are at least satisfied - forsaking even the idea of both sides being happy?” Well, the issue of equality and freedom of religion have become disgustingly tangled. Those who wish to practice their religion, exclusive from same-sex marriage, and enact their religious identity, feel encroached upon by being “forced” into having their ancient institution amended. They feel violated by government encroaching on their religious expression that a marriage is between a man and a woman. According to Hofstede, this is a primary “value orientation” and it pertains to the roles and differences between masculinity and femininity. Those who wish to obtain a gay-marriage feel that their identity of being an American citizen is being trampled on when they are denied the same constitutional and economic rights as everyone else. Both sides have tried to play down the fears of other side. One side asserts that civil unions imply “difference” but not necessarily “inequality.” The other side asserts that while they wish to benefit from the same religiously-founded institution, they assure the other side that this institution will be left with its religious integrity. The question is; what “line of thinking” will the law ultimately endorse?
How are two sides ever supposed to come to a legal and civil agreement when Government is ultimately being held responsible for endorsing fundamental cultural values? The answer is: it cannot. Government should not, and ultimately cannot sponsor either a religious institution or a value orientation. It is NOT the role of American Government. If that statement is true – why is Government involved with a religious institution like marriage at all? Is that not mixing both the church and the state? Clearly, it is. If the “state” wishes to grant economic and legal benefits to people who engage in a religious ceremony – how is that even remotely fair? It is not fair. Religion, quite frankly, Judeo-Christian or not, has no business mixing with Government – especially when it comes to doling out privileges, rights and legal status. Strangely enough – marriage must be abolished as a LEGAL institution that has tangible, economic bearing on citizens of the United States. This must be done at a federal level on the basis that it violates the first amendment.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...”
By giving joint-tax returns and legal immunities for married couples and not those bound under civil union is a violation of both the first and fourteenth amendment – as there is no opportunity for two males or two females to enter into a union and receive the same benefits that a federally recognized religious institution such as marriage has. It should be enacted that there should be an institution that joins two people by legal contract – citing their eligibility as the same privileges and immunities that modern marriage has today. Furthermore; anyone who has already entered into a marriage would automatically and immediately be granted this new status and no changes to current marriages would be made at either the state or federal level. It would simply allow all citizens of the consenting age to enter into a legally binding contract for union. The religious institution of marriage could “continue” as a spiritual union between two people and the clergy or church of their choice. That way, the religious and deeply ancient tradition of marriage could be maintained – and same-sex couples could still be granted federal and state benefits when entering into a legal union. Freedom OF religion is maintained and Equality of all citizens (at least in union) is realized. That way, if the clergy denies two homosexuals the spiritual union of marriage – their decision will be constitutionally supported as freedom of religion while not disqualifying the legal status of two naturalized American citizens.
Unfortunately, this will not likely become a reality (at least anytime soon.) And although it is pleasing to know that the Constitution, the law of the entire land, has a solution practically written into the very first amendment to solve this hot-button, cultural conflict– there is no evidence to support that the constitution is still being taken seriously as a guideline for policy creation. For instance; Congress has the power to declare war – not the President. The Federal Reserve, not judicially recognized as a government agency has been given unconstitutional power to coin and decide the value of currency.15 Whether or not our blatant disregard for the Constitution is right or wrong – only the history books can decide. Either way, it is safe to assume that the Federal Constitution will not be deciding the conflict in this fashion. At the end the day, somebody is likely going to have to budge. For now, at least in California, the proponents of same-sex marriage are the ones who are doing the budging – wholeheartedly trying to appeal the Proposition 8 voter initiative to achieve legal equality. Meanwhile, supporters of the measure will continue their crusade to protect their exclusive religious institution. The implications of this entire conflict are vast. If the proponents of same-sex marriage have their way, the opponents of same-sex marriage will be left to question how their religious identity will conflict with their national one. However, if the LGBT community is not assured their constitutional right to equality – they will forever be mired in the legal gray zone of having to utilize expensive lawyers to prove the validity of their civil-union's non-guaranteed privileges. Furthermore; it will set a precedence in America that says: “separate” and “unequal” is O.K. On top of that, the power of the courts to rule on the constitutionality of law will be diminished – as the masses of the majority use democracy as a weapon against the minority. It would be in the best interest of everyone for both parties, in the cultural conflict over same-sex marriage, to observe the United States Constitution and come to a legal and civil compromise by untangling the establishment of religion and the institution of government. If the power is truly with the people – one can only pray that the cooler heads of both sides will prevail and begin to open the lines of communication and begin to work on a serious resolution. Despite the legal nature of this issue – it will be the communicators that bring about a solution. Introspection and knowledge of one's own cultural values and value orientations will bring about much needed understanding between both parties – as they will collectively decide the larger identity of themselves, and our Nation.
