***WHY GAY MARRIAGE BAN IS DOOMED TO FAIL***

Notion of 'Sanctity of Marriage' Runs Afoul Of
First-Amendment Separation of Church and State.

By Skeeter Sanders

President Bush's call for a constitutional amendment to ban same-sex marriages was stunning, not for what he said, but for what he did not say.

By declaring that such an amendment was needed to ensure that marriage be only between a man and a woman, the president has tacitly admitted that the existing federal Defense of Marriage Act and its 38-and-counting state siblings are unconstitutional.

They clearly violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment -- as did Colorado's infamous state constitutional Amendment 2, which the Supreme Court struck down in a landmark 1996 decision.

Amendment 2 invalidated state and local laws that banned discrimination against gay and lesbian Coloradans and barred the legislature and municipalities from passing any similar laws.

Evidently, the Romer v. Evans ruling -- combined with the high court's Lawrence v. Texas decision last year that wiped away the nation's 12 remaining anti-sodomy laws -- weighed heavily in Bush's decision to push for the Federal Mariage Amendment.

But the president is old enough at 56 to also remember a time nearly four decades ago when it was illegal in 16 states -- including his home state of Texas -- for two people of different races to marry.

Those prohibitions fell before the Supreme Court as well, when, in Loving v. Virginia, the justices unanimously struck down so-called "anti-miscegenation" laws in Virginia and 15 other states that banned interracial marriages.

"Marriage is one of the basic civil rights of man, fundamental to our very existence and survival," then-Chief Justice Earl Warren wrote for the court. "To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statues -- classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment -- is surely to deprive all of the states' citizens of liberty without due process of law.

"The Fourteenth Amendment requires that the freedom of choice to marry may not be restricted by invidious racial discriminations," Warren continued. "Under our Constitution, the freedom to marry -- or not marry -- a person of another race resides with the individual and cannot be infringed by the state."

Then, as is the case now with same-sex marriages, an overwhelming majority of the American public opposed interracial unions -- Seventy percent, according to opinion polls taken immediately after the Loving decision.

Yet despite this huge expression of public disapproval, there was no clamor to pass a constitutional amendment
to bar interracial unions. Small wonder -- any attempt to do so would surely have been justifiably denounced as racist.

So why all the clamor today for a constitutional amendment to ban same-sex marriage? Simply put, history is repeating itself. Under the Fourteenth Amendment, the federal Defense of Marriage Act and its 38 state counterparts don't have a legal leg to stand on.

But that's not all. The primary justification for the DOMAs -- to "protect the sanctity of marriage" -- doesn't have a legal leg to stand on under the First Amendment, either.

Lost amid all the hue and cry over same-sex marriage is the incontrovertible fact that all of these laws that ban it are firmly -- indeed, inextricably -- rooted in a religious doctrine that condemns homosexuality.

This is made quite plain by the involvement of the Roman Catholic Church and conservative Protestant Christian groups front and center in the drive to pass these prohibitions.

One need only to look at who the most ardent leaders of the campaign to ban same-sex marriage are: Most of them have the title "Reverend" in front of their names or the initials "D.D." (doctor of divinity) after them. The organizations most actively involved in the campaign have direct ties to the Christian Right.

And then there are the repeated -- and increasingly shrill -- denunciations of gay people by Pope John Paul II.
He is even demanding that American elected officials, Catholic and non-Catholic alike, not only ban same-sex marriage, but also deny any benefits to gay and lesbian couples.

We've seen the television footage from San Francisco of conservative Christian protesters, one of them waving
a huge Bible aloft, staging a demonstration at City Hall -- the very seat of the city's government -- aimed at disrupting the city's controversial weddings for same-sex couples. We've heard the battle cry by religious conservatives over and over and over again: "Marriage is for Adam and Eve, not Adam and Steve!"

How anyone can fail to recognize that the drive against same-sex marriage is an unmistakably religious crusade
is utterly beyond my comprehension.

Religious conservatives' insistence that same-sex marriage is "a threat to the sacred covenant that God created
for one man and one woman" is based on the widespread belief that the institution of marriage is sacred. It is a false belief.

Quite the contrary, marriage is a secular institution created by the state, completely separate and distinct from the religious sacrament of holy matrimony.

Beginning with New York, the states created civil marriage at the turn of the 19th century to to facilitate interfaith unions that the church would not permit.

Nearly every religious institution refused to bestow the sacrament of holy matrimony to couples unless both the bride and the groom were practitioners of the same faith. If, for example, the bride was Catholic and the groom was Jewish, the couple was out of luck unless one of them converted.

Religious institutions that oppose homosexuality as a matter of religious principle -- and not all of them do -- have every right under the Free Exercise of Religion Clause of the First Amendment to refuse to award the sacrament of holy matrimony to same-sex couples in accordance with their doctrines.

But they have no right to have their anti-gay religious doctrines made into public law by the state, denying same-sex couples the privilege of state-created civil marriage, over which these religious institutions have no jurisdiction in the first place.

Likewise, the state has no authority to adopt as public law religious doctrines that clearly discriminate in direct contravention to the Bill of Rights. Indeed, the state is explicitly forbidden from doing so by the Establishment of Religion Clause of that same First Amendment.

No matter how carefully the proposed Federal Marriage Amendment is worded, Congress cannot turn a secular institution into a sacred one. Nor can it adopt and enforce a clearly discriminatory religious doctrine against gay and lesbian Americans -- or anyone else, for that matter.

The Supreme Court has ruled repeatedly that because the Supremacy Clause of the Constitution (Article VI, Section 2) legally binds the members of Congress by oath to uphold and support it, Congress MUST adhere
to the strict language of the First Amendment and cannot circumvent it in any way, shape or form.

I defy anyone to prove to me that the Federal Marriage Amendment isn't a government endorsement of an
anti-gay religious doctrine and, therefore, is illegal under the First Amendment.

Let them speak now or forever hold their peace.

 

* * * Skeeter Sanders is a radio disc jockey who lives near Burlington, Vermont.