Guest Blogger

History: The Furnished Means By Which We Suffer

Filed By Guest Blogger | March 10, 2010 11:30 AM | comments

Filed in: Gay Icons and History, Marriage Equality, Politics
Tags: constitutional amendment, gay marriage, marriage equality, Prop 8, Prop. 8, Ryan Secord, same-sex marriage

Editors' Note: Guest blogger Ryan Secord is a recent graduate from Michigan State University where he studied political science and journalism. He worked for the Capital News Service as a state and federal government correspondent, the Hillsdale Daily News, and occasionally writes opinion pieces for the LansingOnlineNews.com. This is part one in "A Queer Endeavour: California's Proposition 8 and Why State Laws Banning Same Sex Marriage Are Unconstitutional," a three part series examining marriage bans from the perspective of a straight man. Parts two and three will run on Thursday and Friday.

ryan_secord.jpgEmboldened by a state of rebellion issued by the mandate of revolution; those who stood both armed with muskets and quills in 1776 provided their signature to the Declaration of Independence in both blood and ink, and therefore a conscientious experiment that had never before been attempted began. Thus, for the first time in human history, a true democracy occurred under the enlightened progressive thinking of our forefathers of the Americas and Thomas Paine.

Where the ancient republics of Greece and Rome fell short, the forefathers of America sought to fill the gap between two distinct thought processes of Republicanism by combining natural law with equality. Thus, came the famous words of the Declaration, echoing in the minds of all Americans today: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."

With these ideals at heart, and a formal declaration of war, a society fought not just because of taxation without representation, but for an endearing perseverance and desire for equality amongst men. Looming in the midst of the Enlightenment period, man began to realize that government should fear the people, and not the other way around.

Such an endeavor came with great cost in both life and heartache; however, in April of 1871, Marquess General Charles Cornwallis of the British Army surrendered his sword to General George Washington and the Comte de Rochambeau of France, thus ending English occupation of the Americas.

Following this victory, in 1787, the Articles of the Confederation were submitted to the Congress of the Confederation as the nation's first constitution. However, as soon as they came, they were modified by the Bill of Rights, the core doctrine of American freedoms.

Thomas Paine had written in his Common Sense pamphlet in 1776 a foreshadow to these events, stating: "Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state an intolerable one: for when we suffer, or are exposed to the same miseries BY A GOVERNMENT, which we might expect in a country WITHOUT GOVERNMENT, our calamity is heightened by reflecting that we furnish the means by which we suffer."

The Means By Which We Suffer

The United States in the 21st century has furnished by way of state and federal laws "the means by which we suffer". To find tyranny and blatant disregard for our on Constitution within our government, we need only look at the issue of same sex marriage in America. The earliest of these events came in the form of legislation, signed by the Democratic President William Jefferson Clinton.

The Defense of Marriage Act (DOMA) passed on September 21, 1996, effectively developed two key legislative victories for conservative agenda politics. These two victories included allowing individual states to not recognize or treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state, and defining the act of marriage exclusively between a man and a woman.

The reason for such a drastic move as to have the federal government step in and politicize the institution of marriage was fears amongst a majority of Americans that Hawaii was planning to allow same sex marriages in the state. This notion brought back fears of President Dwight D. Eisenhower's domino theory, which stated in Cold War politics that if a nation in a region were to fall to the system of communism, then the surrounding countries would as well like a stack of dominoes. However, it was not a Red Scare that had the American people all up in arms, it was the fear of other states in the union falling like dominoes to the progressive notion that two consenting adults can maintain a relationship unified under the sanctity of marriage.

Article IV, Section 1 of the Constitution, otherwise known as the Full Faith and Credit Clause, carries with it a constitutional weight which sent conservative America into mass hysteria. The language of the law requires all states to "respect the public acts, records, and judicial proceedings" of other states. In theory, this meant that if Hawaii legalized same sex marriage, a same sex couple from Alabama, (or any of the other 49 states), would be able to fly to Hawaii, get married and come home and the state would have to recognize the marriage as legal and provide all the state benefits offered by a marriage contract. This would simply not do.

Therefore, the emergency bill was drafted, quickly passing the committees of the House and went to the Senate and hit Clintons desk for his signature before he could say "boo". DOMA's ratification essentially left same sex marriage in the hands of the states on a case by case basis, giving them the wiggle room to effectively ban or allow same sex marriage in their own borders without having to recognize the other states stance on the issue.

Things looked bleak for equality under the institution of marriage until 2003, when Goodridge v. the Department of Public Health went before the Massachusetts Supreme Court. Seven gay couples challenged the states denial of marriage licenses to gay couples within its borders. The couples successfully argued that denial of these licenses were an affront to equal protection under the law.

In a 4-3 ruling, (Four judges supporting same sex marriage and three dissenting), the Massachusetts Supreme Court found no legal reason to "deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry."

The ruling gave the state legislature 180 days to enact same sex marriage. Then Republican Governor Mitt Romney immediately condemned the ruling and called for a constitutional ban on same sex marriage within Massachusetts. However, Romney's attempt to use a constitutional ban failed, and the state began issuing marriage licenses to same sex couples on May 17, 2004, only three months after the city of San Francisco began issuing them as well.

The Powder Keg Blows

America panicked again over same sex marriage.

Amidst the reelection attempt for then incumbent George W. Bush and his race against Massachusetts Senator John Kerry, the California Supreme Court voided all marriage licenses issues to same sex couples. At the same time, seeing the victory in Massachusetts, 11 states, (Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Oklahoma, Ohio, Utah and Oregon), had amendments on the ballot which defined marriage as between "one man and one woman", effectively outlawing same sex marriage. On election day, all 11 states passed these amendments, most by landslides, drilling what would seem to be a steak into the heart of the gay movement.

In the next election cycle, 2006, eight more states, (Arizona, Colorado, South Dakota, Virginia, Wisconsin, Tennessee, Alabama and Idaho), had amendments on the ballot defining marriage between a man and a woman. While this was happening, the Bush Administration was working feverously to pass the Federal Marriage Amendment, which would have amended the constitution to ban gay marriage all together.

But something different happened this time, something unique. Only seven of the eight states attempting to ban same sex marriage passed their amendments, and Bush's Federal Marriage Amendment was squashed by Tom Daschle and the Senate Democrats. Same sex marriage had won a victory not only at the federal level, but Arizona became the first state out of 19 with ballot initiatives to reject a ban on same sex marriage. Suddenly, there was wind in the sails again of the gay movement, and with the utter failure of the Bush Administration and the Republican controlled Senate looming, hope reared its head for the first time.

By 2008, 30 states had a ban on same sex marriage, but some were working to repeal these bans in court and in the legislature, while others were seeking to legalize it where there were no bans at all.

The Tide Begins to Turn

In Connecticut, gay couples sought to follow the example of Massachusetts and attempted to use the court system to legalize same sex marriages. Once again, eight same sex couples challenged the states denial of marriage licenses to same sex couples. This time, however, they lost. A superior circuit judge ruled since Connecticut had legalized civil unions for same sex couples in 2005, "Civil union'(s) and marriage in Connecticut now share the same benefits, protections and responsibilities under law. ... The Connecticut Constitution requires that there be equal protection and due process of law, not that there be equivalent nomenclature for such protection and process."

In the midst of defeat, something miraculous happened. Two Connecticut state elected officials, (Sen. Andrew McDonald and Rep. Michael Lawlor), introduced HB 7395, a bill that would use the legislative process to grant full marriage benefits to same sex partners. This was an enormous leap, from 30 states banning same sex marriage with amendments to a state legislature attempting to use the legislative process to grant it, no one thought they would pull it off, especially after California had tried to do the same thing that year, only to have it repealed.

But they did, and on October 10, 2008, Connecticut became the second state in the union to issue marriage licenses to same sex couples. An astounding victory was had as gay rights advocates all over the country celebrated such a monumental victory. But it didn't stop there.

In 2009, Vermont and New Hampshire became the next two states to fall in line with the legalization of same sex marriage. Perhaps the domino theory was correct, because the entire liberal northeast elite, (excluding Maine, who had legalized same sex marriage just to have it repealed), had fallen under a gay spell.

Conservative lawmakers and think-tanks attributed this (what they would call) disturbing trend to the politics of the region, stating with utter confidence that no "real" American Red State would ever allow such debauchery and blatant blasphemy within their borders. But the look on their faces must have been in utter disbelief when on April 3, 2009, in the heartland of Conservative Red State America, Iowa's Supreme Court became the first state to strike down their constitutional amendment banning same sex marriage.

Conservative and Christian fundamentalist jaws hit the floor that day in such unison that the thump could be heard from coast to coast, which could only be translated by the gay community as a manifest destiny war cry for gay rights to all Americans. The east was won, now, take California, and unify the coasts under one great push for equal rights across the land they thought. And so they did, onward to the Golden State, surely in the land of Harvey Milk, San Francisco and the Western border liberal elite gays could find salvation. How utterly right, and then, how utterly wrong they were.


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I can't wait to read parts 2 and 3, Ryan.

Rick Elliott | March 11, 2010 3:03 AM

The sentiment of this posting is laudable and one I wholly support, but actual history does not convey the same egalitarian message:
--Women could not vote,
--Slavery--people as property--was assumed,
--A slave was only 3/5th a human at the insistence of Northern states,
--Each state guaranteeing two senators makes for unequal representation, skewing power to less populous states,
--Property qualifications were assumed--thus favoring land holders and wealthier people.
This only scratches the surface of the pattern of inequality built into the concept of the founding fathers (but not the mothers).
Also, not Eisenhower, George Kennan, a diplomat and political science expert, is the creator of the political application of the domino theory. Eisenhower only voiced the concept several years after the fact. The theory was already a part of foreign policy discussion.

Ryan your history is very good BUT you forgot one very important fact. If you review "Marriage Cases (2008) 43 Cal.4th 757 of May 26, 2009 you will see this" FINALLY, WE CONSIDER WHETHER PROPOSITION 8 AFFECTS THE VALIDITY OF THE MARRIAGES OF SAME-SEX COUPLES THAT WERE PERFORMED PIOR TO THE ADOPTION OF PROPOSITION 8.
APPLYING WELL-ESTABLISHED LEGAL PRINCIPLES PERTINENT TO THE QUESTION WHETHER A CONSTITUTIONAL PROVISION SHOULD BE INTERPRETED TO APPLY PROSPECTIVELY OR RETROACTIVELY, WE CONCLUDE THAT THE NEW SECTION CANNOT PROPERLY BE INTERPRETED TO APPLY RETROACTIVELY. ACCORDINGLY, THE MARRIAGES OF SAME-SEX COUPLES
PERFORMED PRIOR TO THE EFFECTIVE DATE OF PROPOSITION 8 REMAIN VALID AND MUST CONTINUE TO BE RECOGNIZED BE THE STATE."

Rick, wait for parts 2 and 3.