The Gay Marriage Question

My short answer to the gay marriage question: It should be legal.

My long answer to the gay marriage question:

I will not talk about the economic benefits of gay marriage. I will not even talk about the whole church-state sanctity issue. I have something else to talk about--education.

Now, if you've been paying attention, you know by now that I'm a high school teacher. There are some things that you learn in teacher school that are really not important in terms of what to do when you have a classroom full of children throwing things at each other but are a great help when you start your political blogging career. Like this one.

Imagine yourself back in 1896. Go ahead. I'll wait.

That year the Supreme Court of the United States ruled in the landmark case Plessy vs. Ferguson that the doctrine of "separate but equal" is okay. "A statute," wrote Justice henry Brown, "which implies merely a legal distinction between the white and colored races--a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color--has no tendency to destroy the legal equality of the two races." And segregationists all across the country breathed a sigh of relief.

But what did not happen in the years after Plessy that could have happened is the real story. Segregationists across the country could have begun to worry that the court's precedent would not always stand. "What would happen," segregationist lawmakers might tell constituents in a fund-raising letter or stump speech, "if some crazy liberal judges came along some day and decided that 'separate but equal' was no longer okay? Next thing you know, some crazy liberal judge will be telling us that we have to let our pure white children go school with Negro children, or that our pure white daughters can marry Negro men! The only way to stop this from happening would be to enshrine it in the Constitution!"

And with that rallying cry, imagine if the several states, maybe even the federal government, wrote "separate but equal" into their constitutions. Perhaps the sixteenth amendment would be segregation, not income tax (a double score for some conservatives!).

Imagine, then, sixty years later (and fifty years ago this May), what would happen when plaintiffs from five states banded together to challenge the "separate but equal" education system in the case we know now as Brown vs. the Board of Education. Earl Warren, writing for a unanimous court in 1954, said that segregated schools served no purpose but to push blacks to be lower-status citizens, and therefore violated the fourteenth amendment.

But with a sixteenth amendment saying that "separate but equal" is okay, then Warren would have had no constitutional basis for his ruling. Those crazy liberal judges on the Warren court would have had no way to stop segregation. We would have segregated schools--and more--yet today. Instead, our government did exactly what it should: The legal system worked, and the civil and equal rights of individuals eventually prevailed.

(As an aside, as much as I dislike the Milwaukee daily paper, they have done an excellent series on Brown and its impact over the last 50 years.)

George W. Bush and his ilk believe we need constitutional protections now in order to stop those crazy liberal judges of the future--or maybe even of today--who will declare gay marriage legal. Bush said in his State of the Union address, "Activist judges [. . .] have begun redefining marriage by court order, without regard for the will of the people and their elected representatives. If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process."

Roberta Combs, president of the Christian Coalition of America, adds that "judicial tyranny in this country has gone too far. Congress and the state legislatures need to fulfill their constitutional responsibilities and stop these runaway liberal judges."

Now, history, of course, has told us that the Warren court made the right call on segregation, and it's hard even to imagine that anyone fifty years ago would have been on the other side of the issue. I firmly believe that history will write that we are on the right side of this issue, too. But we will never get the chance to find out if these modern-day segregationists get their way and enshrine bigotry in the Constitution.

The Atlanta Journal Constitution agrees with me that amending our Constitution would be bad. I mean, the Constitution is the legal, moral, and ethical foundation of our law, and every single element of the Constitution is designed to do one of two things: protect the rights of individuals, or restrict the reach of the government. Every single amendment, with one exception, is there to do those two things--extend rights to individuals implicitly or explicitly left out of the original document, or further limit governmental power.

The AJC explains the exception:

The only other amendment to the Constitution that addressed a similar cultural issue -- and which took away rights rather than conferred them -- outlawed the sale of alcoholic beverages, otherwise known as Prohibition. That proved such a miserable mistake that it had to be repealed a few years later. The same fate would probably befall an amendment that addressed the cultural and religious meaning of what is essentially a legal contract between two people "sanctified" by religious ceremony.

We must not mess with the Constitution. Instead, we must let the legal system work. I have confidence that before long, we will see the equivalent of Brown for gay marriage. The segregationists hued and cried then, and the Bushes and Roberta Browns will do so now. But in the end, protection and extension of rights will win the day.