First I have to establish some assumptions. The first is that the religious right believes that homosexuality is a sin. But in my lifetime I cannot recall when it was ever illegal or any Christian who thought it should be made illegal…except my mother, at least until her baby boy declared he was. And while showing a certain kind of disdain for homosexuality, the religious right also has never attempted to prohibit gays from forming lasting relationships, which, short of the case at bar, a marriage license, looked an awful lot like marriage.
For many years the gay community had been all right with this arrangement with the dominant straight world, providing havens, (San Francisco, Minneapolis) for small town gays who found the stigma too difficult to cope with. That stigma no longer exists almost everywhere, thanks to thirty years of steady indoctrination in public schools, aimed more at religious parents than the children. In fact, those programs have been so successful that while real homosexuality in America still teeters between 2%-3%, depending on how you count young college girls in the northeast who must pretend for a couple of years just to get through school, that most millennials believe 25% or more of Americans are gay, so it must be fairly normal. Still, with such a significant overstatement of cultural normalcy in hand, far too may gays are still obsessed about their sexuality, unable to sleep at night knowing someone…they don’t know… 600 miles away, might disapprove of their life choices. Trust me, being a Christian these days is even tougher.
I am of the religious right but have always believed that every person is entitled to seek and find another person and settle down with him/her, and since they are also citizens, and it isn’t against the law, gays should also be allowed to enjoy the same protections of the Constitution as the next couple.
Sounds fair, doesn’t it?
This has been the sticking point, however, with a long list of federal rights provided to married couples but denied to gay couples, from tax breaks to survivor benefits, even emergency room access. Corporations had at one time been equally insensitive in matters of employee rights. Powerful Hollywood films have been made on this subject, and gay-rights lawyers all over the country have been doing a land office business in estate planning, convincing gays they needed special wording in their wills to prevent bogeyman acts that simply were never existed. I had a gay friend in Arizona, in 2000, tell me he voted for Al Gore because Gore would let him leave his estate to his partner. Now that was so wrong in so many ways, I can’t list them, but it did prove that even kids with a 140 IQ also sleep through Civics class. I told him he cold have left his estate to his partner in 1910, when Arizona was still a territory. But siding with caution, he paid $5000 for a will he could have had drawn up for $250.
The recent Supreme Court decision not to hear appeals of the five states whose people had voted to ban same-sex marriage has been, for better or worse, deemed to be a Roe v Wade-like blanket grant for gay marriage. Only it’s not. It affects only five states, leaving close to 30 states with no law on their books one way or the other. And a long legal process to force them.
My view is that the Court (deeply divided, I’m sure) wants to avoid a repetition of the Roe stigma of legislating from the bench which even in liberal circles was always considered bad law, not to mention cementing into the legal fabric conditions, as Roe has proved, could never be undone by legislation at any level, state or federal, while also making it impossible to amend for life, but easy to expand (going well past first trimester abortion to partial birth, and to government-paid abortions) toward a cultural indifference toward the humanity of the fetus-formerly-known-as-baby.
With this decision not to decide, this Court has subtly hinted that there is a way(s) for the states to find a way to protect traditional marriage, and to even put the appeals process on the other foot, so that they can review the case in the future. But it will be all about law.
Solomon’s Remedy
I would suggest the states offer the Court the ability to invoke King Solomon’s most famous judgement (that’s for those of you who read) of splitting that baby in two, culling the law from the politics, just to see what is really valuable to the contending parties.
For instance, I know there are self-righteous bigots out there who likely can’t go to sleep at night without asking God to strike down gays. But you can fill a small church in Harlan County with the Christians who believe this way. At the same time, I am sure millions of other Christians pray every day for the recovery and redemption of gays, which aggravates gays more, keeping them awake at night, for utmost in many gay’s minds is the need for approval. And that’s the politics of it.
Well, politically, the need for approval has morphed into a demand for it, so we really can’t discuss modern gay politics without interjecting the term “teat-fittery”which is certainly not a legal term. But it has been obvious that the Gay Rights Movement, unlike gays in general, has always been about something other than rights especially since, as citizens, they enjoy the same rights every other citizen.enjoys. The Gay Rights Movement was always been about carving out a niche for themselves as a protected class, sort of like being black, only in the 1980s, the science community didn’t agree. Until recently (20-30 years) the accepted science of homosexuality was that it was a choice, a product of various types of conditioning; a doting mother, a distant or abusive father, and other environmental circumstances. I represented gays in the military during the Vietnam War and was up on the medical-psychiatric literature of the day. The standard psychiatric textbooks listed homosexuality as a “psychological deviancy” well into the 1980s. Then, almost in lock step the entire psych profession decided, No, now it’s genetics, placing gays in the same category of minority victims as (loudly dissenting) blacks. They can’t help it. People knew little of turnaround at the time, for it was not widely advertised. And the science is still iffy, going against the Bible, common sense, and quite frankly, the Darwinian notion of survival. But today, with the odor of fraud in climate science in the academy in the air, people are thinking less and less of conventional science every day.
. And don’t even get me started on the females, for since the 1980s at least, in many of the better private girl’s colleges in the northeast, girls had to pretend to be lesbian just to get decent grades. In the 1980s, in a very clever article in “National Revue” by a young Yale grad, (whose name I can’t recall), she asked how the coeds she’d gone through school would try do disguise their four-year flirtation with being lesbian, as they began trying to find an available Delta Kappa from Harvard in the marriage market.
If the states, all of them, or only a few, including Virginia and the others just rejected by SCOTUS, go back to the drawing board and come up with a “civil union” formula, not only for gays but non-religious straights, which guarantees couples all the rights the Due Process clause of the Fourteenth Amendment, only denying them that magical word “marriage” on the certificate of union, then let’s see which side does the most squealing…the religious right or the gay Rights cabal, whose major purpose has always been to rub that word in Christians’ face. That’s how Solomon would have handled it.
Now, the states can never segregate the word “marriage” into the religious camp exclusively, for there will always be some churches in every state that will still be happy to proclaim the sacred rites of gay matrimony. But it may not be a bad thing if all the gays in America became Presbyterians on just this account,. Talk about proving the old adage that “hypocrisy is the price vice has to pay to virtue.”, so, the practice wouldn’t last long, as they would quickly learn who the joke’s really on.
I’m sure the states can come up with other terms. “Civil Union” is but one way, but a good, non-judgmental one. If people who don’t want a minister to do the service, but prefer to go down to the court house and he asks “Do you wan me to pray over this?”, which is how they ask in Virginia, and you say “no”, he pulls out a piece of paper that says “Civil Union” then you have a union “without benefit of clergy” (Kipling)
I think the Supreme Court would like to hear arguments along these lines, as long as the gay citizens’ rights are protected. That done, then it is politics, not law, that is being used to shove the word “marriage” up the churches’ nose.. I know the majority of the Court do not like having to adjudicate political issues with law, and hates when we try to force them to adjudicate legal issues with politics. I think they would like to see some genuine legal issues come before them over this same-sex marriage issue.
They are there if the state legislatures will simply look for them. This was never a left-right issue, but one of political fear and political correctness.
