Larry Ray : The Right of Americans to Love and Marry

There's a problem when the stars and stripes exclude some Americans, forcing them to have their own flag. Image from iHandbill.

The right to love and marry:
Picking the fly specks out of the pepper

Conservative judges on the Supreme Court were literally stewing and sputtering as they questioned attorneys speaking in support of same-sex marriage.

By Larry Ray / The Rag Blog / April 9, 2013

It would seem reasonable that most folks could agree that no person decided to be born with red hair, or with a club foot, or as a prodigy, or with black skin or white skin, or as a government issue "normal" person. An embryo doesn't get to decide that kind of stuff.

So, when a male and a female produce a child, how much does their genetic material, their parenting, and their environment have to do with that child's eventual sexual orientation? And if the kid is homosexual are the parents OK with that kid eventually living like a second class citizen in America?

Prior to the Middle Ages we don't hear much about homosexual acts other than they seem to have been accepted with no big problem back then, even by the Christian Church. But the Renaissance of the 12th Century saw a birth of intellectual revitalization and a steady growth of open hostility against homosexuals. This vilification was taken up and quickly spread through the Christian Church and also into secular organizations.

The normative characteristics of human sexuality have been debated probably since homo erectus learned to talk. In the late 1600's the most influential of the so-called Enlightenment thinkers, John Locke, argued that the mind is a "tabula rasa" or blank slate and that the environment in which a child is raised determines its sexuality. In the early 1900's Sigmund Freud's papers on sexuality ultimately held that sexual drives are instinctive and a central source of personality. And in recent years most researchers ask whether either of those ideas ever had much merit whatsoever.

What has never changed is the fact there have always been people born who have a sexual attraction to their own sex, and that has always seemed to others to be rather, well, queer.

So by the end of the 19th century, in addition to long having been being labeled a sin by the Church, homosexuality also became viewed as a deviant mental disorder. And it was not until 1986 that the American Psychiatric Association finally completely removed the classification of homosexuality as a mental illness from its Diagnostic and Statistical Manual.

And now not quite 30 years after that milestone, the Supreme Court has finally heard two sets of oral arguments regarding same-sex marriage. One argument basically deals with the Constitutionality of the 1996 Federal Defense of Marriage Act, or DOMA, and the other whether California's Proposition 8 can single out any group of people and prevent them from being legally married in that state.

But in both instances the arguments don't come right out and talk about homosexuality itself. Instead, the arguments are about marriage, both religious and secular. The Christian Church makes a singular claim to marriage as a sacred and crucial part of the religious life of their adherents and their definition of marriage is that it can only be between a man and woman. Anything else and Leviticus is loudly quoted.

Section 3 of The Federal Defense of Marriage Act codifies the non-recognition of same-sex marriages for all federal purposes, including insurance benefits for government employees, Social Security survivors' benefits, immigration, and the filing of joint tax returns. Not recognizing same-sex marriage is federal law.

President Clinton, under whose administration DOMA was created and passed, now says same-sex marriages should be just like any other marriage. Clinton and a number of other elected career politicians have recently disavowed DOMA and called for its repeal... but since 1996 none of them have stepped up and done anything to see that it is, in fact, repealed.

President Obama has simply dodged the issue by saying Section 3 is unconstitutional, but that he would still continue to enforce the law, but, however, that he would no longer defend it in court. No profile in courage here. More like the statement of a Lewis Carroll character from Alice in Wonderland.

Reaffirming their blatant discrimination and clearly indicating strong opposition to same-sex marriage, the U.S. House Republican leadership quickly instructed the House General Counsel to defend the the Defense of Marriage Act in place of the Department of Justice.

Public opinion polling now shows consistently that around 58% of the country supports homosexuals marrying one another. And their message is that this should not be such a big deal.

The trend in a 2012 Mercer survey of employee health benefits shows "about half, or 47% of employers with more than 500 workers made health coverage available to same-sex domestic partners, with large employers it’s even more prevalent, with figures in the 60-75% range."

So imagine America's politicians, particularly conservative Republicans now in a 2014 election minefield, where not voting to finally recognize homosexuals as equal to all other Americans might cost them votes back home.

Conservative judges on the Supreme Court were literally stewing and sputtering as they questioned attorneys speaking in support of same-sex marriage. And attorneys questioning the Court about the issue of alienating a group of citizens from the institution of marriage brought forth not answers but more questions as answers.

Justice Scalia replied, asking, "...when did it become unconstitutional to exclude homosexual couples from marriage?" clearly indicating Scalia's view that society has always excluded homosexuals. And Justice Alito lightly commented that same-sex marriage is “newer than cell phones and the Internet,” suggesting that perhaps all of a sudden homosexuals just up and decided they want the same rights as every other American citizen. Risible and disappointing evasion from the high court.

The U.S. Supreme Court's position on marriage was once crystal clear when it came to a black marrying a white. That meant a prison sentence in many states if a white man married a black woman or vice versa. That law stayed on the books for 84 years until a case was brought before the Supreme Court in 1967 by Mildred Loving, a black woman, and Richard Loving, a white man, who had been sentenced to a year in prison in the State of Virginia for marrying each other.

After the Loving case was championed by Attorney General Robert Kennedy and the ACLU, the Supreme Court, in a unanimous decision,  overturned the 1883 Supreme Court ruling which had affirmed that Alabama's anti-miscegenation statute was constitutional.

It was overturned after 84 years of a court-approved, hate-defined prohibition of marraige between blacks and whites. The law clearly was finally struck down because of the Civil Rights act of 1964... and then only because Mr. and Mrs Loving filed suit for the right to legally love one another and marry.

Yet in 2013, the Civil Rights Act of 1964 that outlawed major forms of discrimination against racial, ethnic, national, and religious minorities, and women still does not seem to apply to homosexuals. Those American citizens whom the Catholic and Protestant Christian churches define as sinners, are not allowed to legally marry with all rights and benefits guaranteed by the Federal government. It is fair to ask if Church and State are indeed separated in this case?

What the Supreme Court and our politicians are doing is what in Texas we call "picking the fly specks out of the pepper," an earthy expression meaning delaying, ridiculously arguing, failing to act through use of excuses or plain old bullheadedness.

Same-sex marriage poses no more threat to our society than did black folks who were not allowed to sip a soda at Walgreens. We have mostly gotten over the ugliness of our racist American past.

Now it is time to also end the hate and judgmental exclusion that still makes it illegal for some folks in America to get married to the person they love.

[Retired journalist Larry Ray is a Texas native and former Austin television news anchor who now lives in Gulfport, Mississippi. He also posts at The iHandbill. Read more articles by Larry Ray on The Rag Blog.]

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