Congress has passed and the president has signed legislation recognizing same sex marriages as valid throughout the United States of America. It still allows states to outlaw the performance of same sex marriages, but it establishes that marriages permitted in any state must be recognized as valid in all of the states. This is a giant step from the “don’t ask, don’t tell” policies of the Clinton era. Its intent is to interfere with the Supreme Court’s disqualifying the validity of same sex marriage by declaring it not covered by the Constitution or any Federal legislation. This Supreme Court has already voided a variety of practices considered to be legal by prior Courts under the right to privacy rule that this Court apparently does not recognize.
The current Supreme Court majority has adopted the position that, if it is not explicitly addressed in the Constitution or any of its amendments, it is not subject to regulation by the Federal government. A little recognized irony in this Court’s position is that it proves James Madison, one of the architects of the Constitution, was wrong when he argued against the need for a Bill of Rights. He believed that there was no need to specify that the people had rights to free speech, free press, assembly, etc., and freedom from warrantless searches, laws regulating religious practices, etc., because all of these freedoms were implicit in the unamended Constitution.
Many individuals in the United States contend that homosexuality and same sex marriage are forbidden by their religions. There are several references to the unacceptability of homosexuality in the Judeo-Christian Bible, but the condemnation of homosexual practices in the Bible is like the condemnation of lying, adultery, and the consumption of a variety of foods. Religious leaders looking at the sins enumerated in the Judeo-Christian Bible disagree on whether or not people who eat shellfish or pork should be punished or if individuals who perjure themselves in court should be executed. What the authors of the Bible disapproved of is self-evident, but what practices and punishments should be adopted from this, or any religious text, has been a source of controversy for several hundred, if not a few thousand, years.
The first possible reference to homosexual behavior in the five books of Moses occurs in discussions of Noah’s sons after the flood. Noah apparently had a problem with alcohol abuse and his son Ham found him drunk and naked and committed a misdeed that warranted a curse from his father that extended to all of Ham’s descendants. Exactly what Ham did to his father is not explicitly described, but the punishment levied on him certainly suggested something very naughty. That Noah’s other sons took efforts to cover his nakedness up and to not observe his nakedness suggests that Ham’s offense was sexual. Most reviewers of this material have concluded that Ham sodomized his father or otherwise sexually abused him.
Given that the Bible stands firmly against disrespecting parents and against sexual activities with very close relatives, it may well be that Ham was vilified for ignoring both of these injunctions. Fortunately for America, the bases for these biblical aversions and Ham’s curse are of no consequence. The Founding Fathers were committed to avoiding the religious intolerance and divisiveness that had plagued Europe for centuries.They stated that Americans would not be subject to a “religious test.” Individual rights would not be affected by a citizen’s religious beliefs or affiliations. In drafting the Constitution, the Framers were careful to avoid any suggestion of endorsement of any religious practices or religious establishment. The only apparent lapse in this circumspection was in dating the unamended version of the Constitution to “the Seventh Day of September in the Year of our Lord one thousand seven hundred and Eighty seven…” Most dating of official documents still uses the archaic Latin reference to “anno domini [A.D.],” which literally means “in the year of our lord.” Routine practice has effectively diminished its association with the presumed birth year of Jesus of Nazareth.
Although many of our legislators and at least one presidential candidate (Illinois congressman John B. Anderson) lobbied for an amendment to the Constitution that would designate the United States a “Christian nation,” these efforts have failed for several reasons. The most obvious is that no faith, denomination, sect, or faith-based philosophy is accepted by a majority of Americans. Also, the consequences of theocracy in countries as different as Great Britain and Iran has stymied efforts to get all Americans to designate one religion or philosophy as better than any other. Even trying to characterize religious groups by such labels as “the Jews,” “the Christians,” “the Muslims,” etc. fails because virtually every religious denomination splinters into numerous distinct and often opposing groups (e.g., Shiite and Sunni, Lutheran and Roman Catholic, Satmar and Hiloni).
Although our Republic was founded as a secular state, it has inevitably adopted unambiguously religious laws, slogans, oaths, and other reminders of the religious persuasions of lawmakers. In most states and counties, affirmations that a witness will not commit perjury routinely end with the statement, “So help me God.” Many states and municipalities still have laws restricting commercial activities or the sale of alcohol on Sunday, the Christian’ sabbath, rather than on Saturday or Friday, in deference to Jewish and Muslim practices. We routinely recite a pledge of allegiance that had the phrase “under God” introduced in 1954. In 1956, President Eisenhower declared, “In God we trust” the official motto of the United States. This supplanted Benjamin Franklin’s original secular motto of “E pluribus unum (Out of many, one).”
The ban on same sex marriages by consenting adults was and in many states still is a perpetuation of a religious viewpoint. Banning such marriages denies a specific group of citizens the protections and opportunities guaranteed to heterosexual individuals entering into such binding unions. The U.S. Supreme Court will be looking at the legitimacy of same sex marriage, and a majority of its Justices will probably rule that there is no Constitutional basis for laws allowing same sex marriages. They undoubtedly will not recognize that their opinion undermines the fundamental objective of the U.S. Constitution, that being, justice for all.
