This is Part II of a two-part series on marriage in the United States and the legal ramifications of same-sex "marriage" in this country. Part I dealt with marriage and the law up to the end of the 20th Century. Part II here will focus on events in the present century.
Marriage in the United States has always been a civil matter. The states, in particular the legislatures, which would include the people of the state when there is a ballot initiative passed by popular vote, have had the sole power to regulate it, provided those regulations follow the Constitution. Up to 2003, the law in every state and in the federal government has always stated a marriage consisted of one man and one woman; attempts to redefine marriage to allow for plural marriages or to keep mixed-race couples from marrying each other have been rendered illegal at various points in U.S. history. At one time, a divorce could only occur when the state legislature passed a resolution instead of having it done in the courts. But while a civil matter in the law, marriage has religious aspects as well. This is important as the judiciary at the state and federal levels have pretty much taken over the power, some would say usurped from the legislatures and the people, answering what is and what isn't a marriage.
In just about every faith in Christianity, along with the religions of Judaism and Islam, a marriage is holy, and therefore recognized, with certain limitations, especially when divorce is involved, regardless of whether a couple was married in a religious or civil ceremony. It is also true that in those faiths, homosexual relations are sinful, just as heterosexual relations outside of marriage are sinful, and celebrating those relations is a celebration of sin. Until such time that these religions somehow consider homosexual relations as not sinful, which would contradict the many places saying it is in the Old and New Testaments where it says so (and, for Christians, would contradict the warnings in Revelations 22:18-19), the adherents to these religions are supposed to be free of interference from the various levels of government to believe and speak out against the sin of homosexual relations. This doesn't mean there should be attempts to criminalize these relations, especially since such laws are now illegal; but, the rights to adhere to these beliefs remains. This is not insigificant as there are troubling aspects related to the same-sex "marriage" debate that would not be found in any of the previous rulings on marriage.
Massachusetts was the first state to discover a "right" to same-sex "marriage", doing so in 2003. However, it was done through the courts and not through the legislature or the people. In fact, there appears to have never been an attempt in the previous decade or so prior to the 2003 ruling to have either the Massachusetts legislature or its citizens decide what constituted a marriage. Following the Massachusetts Supreme Court ruling, attempts to allow the voters to define marriage as consisting of one man and one woman were deliberately delayed by the state legislature until there were enough votes to keep the people from deciding one way or another. Other than that, Massachusetts lawmakers have removed a restriction that used to allow the state to deny a non-resident couple to marry in the state if the marriage was not not recognized in their home state; in other words, under the change a same-sex couple who could not be married in Arkansas (my state) would be allowed to be married in Massachusetts.
Judicial rulings in other states such as Iowa legalized same-sex "marriage" in the next few years. Vermont, which had passed the first civil union law in 2000, was the first state to have the legislature pass a law to recognize same-sex couples as married without being forced to do so by the courts.
Then there is what happened in California.
The Proposition 8 case now before the Supreme Court, Hollingsworth v. Perry, came out of a ruling (Perry v. Schwarzenegger) in the U.S. District Court for Northern California by the Reagan-appointed Judge Vaughan Walker. Ignoring as irrelevant inferences about Walker's handling of and suitability to rule on the case, his decision makes some claims that should give pause. But first, the facts. Walker's ruling throws out Proposition 8, an amendment to California's constitution defining marriage as one man and one woman, as a violation of the Due Process and Equal Protection Clauses in the U.S. Constitution. It should be noted that Proposition 8 came out of a California Supreme Court ruling in In re: Marriage Cases that threw out Proposition 22, a statute (as opposed to a constitutional amendment) saying the same as the later Proposition 8, and thus the ruling created the "right" of same-sex "marriage" in California in contradiction of the voters; even though Proposition 22 was invalidated by it, the California Supreme Court upheld Proposition 8. A three-judge panel of the 9th Circuit Court of Appeals agreed with Walker that Proposition 8 was unconstitutional, even citing Baker v. Nelson (see Part I for information on this case) as non-applicable (because same-sex "marriage" was made legal in California in In re: Marriage Cases, the district court did not run afoul of the Baker precedent in taking the case). The panel's Perry decision was crafted to only apply to California. It will be up to the Supreme Court to render a decision to overturn Walker's and the panel's ruling and remand it back to the lower courts, to allow it to stand for California on the merits, to allow it to stand for California by not ruling on the merits but deny standing to the plaintiffs (the California state government declined to defend the vote of their citizens), or to have Walker's ruling apply to all 50 states (there may be one or more scenarios as well).
Walker's ruling included what he called many "Findings of Fact". However, at least one "fact" is not a fact. "Findings of Fact" 62 states as follows:
Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples. Prior to Proposition 8, no religious group was required to recognize marriage for same-sex couples.
Wrong. Here is an example. There are people who work in government who issue marriage licenses along with other duties. There are bound to be people who do this job who are going to believe same-sex "marriage" is wrong on religious grounds and will not issue marriage licenses to same-sex couples, even in a state that recognizes same-sex "marriage". After In re: Marriage Decisions and before Proposition 8 passed, there were implied threats by government officials in California that all employees having anything to do with marriage must include same-sex couples regardless of an employee's religious beliefs, a threat which would be a violation of Article I, Sec. 4 of California's Constitution. So one of Walker's "Findings of Fact" "facts" is not based on a fact.
To continue, "Findings of Fact" 77 through 80 go through a litany of complaints about religious objections to same-sex "marriage". The effect of these complaints allows Walker, just prior to his conclusion, to render an individual's religious beliefs in this manner:
Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.
In other words, Walker says these religious beliefs are not rational. There is only one thing to say to this: is he kidding? Our individual beliefs, religious or otherwise, guide us to live our lives as good citizens. I don't steal not only because the government says it's illegal, but because I believe it's something God commanded me not to do. Many of the things I've done that aren't illegal were done because I've tried to follow God's Commandments; conversely, I've done things not considered illegal that did violate God's Commandments and I wish I hadn't done them. Walker's own beliefs, whether they are guided by religion or not, do guide him in how he lives, which includes being a homosexual in a loving same-sex relationship.
The question then is, how are Walker's beliefs rational while declaring as irrational those who have religious beliefs to think homosexuality is sinful? The answer is, of course, there is no answer. What does it mean to be rational? Is belief in a god rational to be protected by the First Amendment? How about the belief that God as Jesus Christ died for our sins and was resurrected from the dead? Or the belief that the Ten Commandments is the law of God? And what about belief in no god? Is this rational and proteced by the First Amendment? Or the belief that homosexuality is perfectly normal. Is that rational or based on data that shows it to be rational? If it is normal, how come more people aren't homosexuals, especially where same-sex "marriage" is legal? Or is it that homosexuality is considered normal only by those who believe it? Wouldn't that make the notion of homosexual normality irrational? To decide that an individual's religious beliefs that are not contrary to the law but Walker considers not rational is just a fancy way of ignoring a fundamental right guaranteed in the Constitution, much like the Obamacare HHS contraception/abortifacient mandate does.
Here is another point. Homosexual acts aren't the only sins mainstream religions preach against. Heterosexual acts outside of marriage have always been considered sinful as well, even as these acts have been made culturally normative. Same-sex "marriage" activists have claimed that because homosexual acts have been targeted as sinful by the various mainstream religions and faiths, homosexuals have been exclusively targeted as sinners. Nothing could be further from the truth as all sexual sin is denounced; just because our present culture ignores those denouncements doesn't mean they don't occur.
In a section regarding the Equal Protection Clause, Walker introduces uses this falsehood:
Those who choose to marry someone of the opposite sex —— heterosexuals —— do not have their choice of marital partner restricted by Proposition 8.
Can anyone guess how this statement is incorrect? Come on, I know you can. No? If I'm married and want to marry another woman, I can't while I'm married. Oh sure I can get a divorce, but at the time I'm married, I can't marry someone else. It's the same if I wanted to marry a woman already married. Can't be done. What if we're both married? Can't be done. Being a man, I can't marry my mother or my sister; if I lived in New York, I couldn't marry my father or brother either. My choice is therefore heavily restricted under Proposition 8, as it is in every state; I can't choose to be married to just any woman at any time. In fact, my choice is even more restricted under Proposition 8; I can only be married to one woman at any one point and nobody else, not another woman I'm not related to, not a man I'm not related to, not my mother, not my sister(s), not my father, and not my brother(s). I'm not even going to get into other possibilities as I would be accused of equating those with a homosexual act. And guess what else? Other than with the wife I am married to, all mainstream religions find sinful any acts of sex I have with those other people. So the idea that finding homosexual acts sinful amongst those who believe it is so is just one type of sexual act that is deemed sinful, even if the sex act is with someone of the opposite sex.
This is especially true with incest. Sex with a sibling, especially an opposite-sex sibling where a child is produced, has always been sinful. But even here, the ancients could see the negative effects from the children born of these unions. They may not have known scientifically why there were these negative effects, only that God marked the acts sinful and that there were bad consequences. Even times more closer to the present, 500 or so years ago, pictures of Hapsburg kings and emperors, of the Catholic Holy Roman Empire no less, showed how that family ruined itself in the name of "purity", only to see the descendents of those and other incestual unions die out within a few generations. In the present, we have more scientific knowledge of how children produced from incest are genetically harmful, especially as the incest crosses generations. Boy them ancients were smart, weren't they? It kind of makes you wonder about those other sexual sins God frowns upon, doesn't it?
Here's another fact that goes completely unmentioned in Walker's diatribe. Biology. Walker would have us believe historically women were treated as inferiors in a marriage only because it was dictated by the culture. While that is true to a large degree, there are two other factors: in general, men have always been physically stronger than women so there were some jobs only men could do or could do well; and, only women can bear children. Not even the Equal Protection Clause can "fix" either of these. While the former item is much less important for humans to survive in the present day, which is reflected in today's culture as the role of women has expanded, even in marriage, the latter defies cultural changes. Even as women have taken on real positions of power, they cannot ignore the simple biological fact that it is only they who will bear children. But then again, there isn't much in Walker's ruling reflecting anything that might negatively impact his ruling.
This is where Walker's "Findings of Fact" 77 through 80 get insidious. The complaints listed read like a repeat of how the federal government has dealt with racial discrimination long after the legislation enacted to correct it have served their purpose but are still litigated. It is an attempt to set things "right" for homosexuals whom Walker believes have been so unduly burdened in the past, and to use the past to avoid having to protect religious freedom. That is one reason why Loving is cited as a reason for Walker believing he is justified in throwing out Proposition 8, similar to the reasons why the federal government uses the past against states where racial discrimination was policy and ignore the fact that the majority of people in those states no longer have an interest in reinstituting those policies. It is a way to promote discrimination against those with religious beliefs against same-sex "marriage".
Here are some more examples. Harsh threats of termination and prosecution have been issued in the state of New York by Gov. Cuomo and other officials following passage of their same-sex "marriage" law, a violation of Article I, Sec. 3 of that state's Constitution. In addition, it would be just as discriminatory in California and New York based on their Constitutions (and I would guess those of every other state) to deny employment for any job to an otherwise qualified individual based on their religious beliefs, as it is discrimination to deny employment on other grounds.
So far, I haven't seen where these religious beliefs are protected when put into practice by religous organizations and individuals holding these beliefs. Dana Loesch has a post with a comprehensive list of attacks on people and organizations by government and same-sex "marriage" advocates for what is considered general doctrine. Fox News' Todd Starnes has a post on an attempt by homosexuals to have a Catholic priest physically removed from the George Washington University campus for preaching Catholic doctrine against homosexuality (they also want to have defunded the Newman Center, a center for GWU Catholics and others, that is apparently on campus). In the post, the head of the Newman Center Society, the parent organization of the one at GWU, defended this doctrine as one that treats all sex outside of marriage as sinful. Now there are those who might say that because a same-sex couple is considered "married" by the state means that the Catholic doctrine (and the doctrine of other Christian faiths and other religions) against homosexuality by now-"married" same-sex couples would be moot. Unfortunately, it is not for those others, and especially not the government, to say this considering religious texts going back centuries and millenia that are the basis for this doctrine clearly state homosexual acts are sinful. Those with these religious beliefs are on fairly firm ground legally following the recent unanimous Hosanna-Tabor ruling by the Supreme Court. But of course, all law is settled law until it isn't, and there is no way to predict, unfortunately, how the court would treat these cases. The track record isn't promising. As there has been litigation against those who had nothing to do with committing the "sin" of racial discrimination but happened to have something to do with a state that did decades ago, expect litigation for years against those who have committed the "sin" of denying "married" same-sex couples or who believe same-sex "marriage" promotes sinful behavior. While Walker claims referring to homosexual acts as sinful harms same-sex couples and those morals have no place in law, the law he would impose creates new "morals" that would make the new "sins" illegal and/or criminal.
Then there is the case against the 1996 Defense of Marriage Act (DOMA). As far as I'm concerned, there is nothing wrong with Section 2 of DOMA. Under the Full Faith and Credit Clause, Congress has the power to make sure states handle marriage on their own, especially if one believes it is the states who are responsible for regulating marriage under the Constitution. If a same-sex couple considered "married" in New York moves to Arkansas, they are not married as far as Arkansas law is concerned. If that same couple wants to be "divorced" as they would be in New York, they can go to New York to get the divorce; it is not an issue Arkansas' should be forced to deal with. So if Section 2 of DOMA is valid under the Constitution, what about Section 3, which is the main part of DOMA being considered? Well, that's a darn good question. If a federal employee and/or their same-sex "spouse" lives in a state where same-sex "marriage" is legal, then Section 3 is a problem. If a federal employee and/or their same-sex "spouse" lives in a state like Arkansas where marriage is one man and one woman, Section 3 is fine. If a federal employee and (note the distinction) their same-sex "spouse" live in a foreign country, then Section 3 is a problem since where they were "married" would matter. If anything, it can (I believe) be considered unconstitutional, but also to have Congress fix it. Otherwise, all removing Section 3 does is give the federal government sole power over regulating marriage, which brings in a whole host of other problems, namely plural marriage.
I hope I was able to provide some information you may not have known before and kept you interested.