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The Constitution Promises Liberty to All Within Its Reach

Let freedom ring! Today, America shined bright.  Today, America proclaimed to posterity, once again, why she is a morally great nation.  Today, pause, America created a more perfect union.

Justice Kennedy delivered the opinion of the Court in Obergefell v. Hodges.  He also delivered the final blow to one of the remaining Civil Rights battlegrounds in the Global war for human liberty – Gay Marriage Equality.

Whether you are gay, straight, not sure, or damning everyone to hell – equal protection under the law keeps you free. The very foundation of Western civilization depends on it.  This article explains why…

When we say we aren’t like other nations where people are burnt alive, decapitated, drowned in a cage, or flayed because they proclaim the wrong politics, say things that enlighten others against dogma, or make love to someone unapproved by clergy – we are able to do so because we have a vehicle in our legal code that delivers freedom like a gushing artery delivers blood and deflects oppression like a shield.

That vehicle is called Equal Protection. You can read it in the 14th Amendment to the United States Constitution.

Oh yes –  an “amendment.”  An add-on to the living legal code from a time when we as a nation realized we had to change something to straighten a crooked thing, right a wrong, moralize a corruption.

Understanding Today’s Ruling:  The Real Issues

Even though upholding the right to gay marriage may seem obvious to many or perplexing and incomprehensible to others – it pays to understand how the U.S. Supreme Court came to its conclusion… because it was not arbitrary or made up.

Today’s ruling addressed two basic questions:

  1. The first, presented by the cases from Michigan and Kentucky, is whether the 14th Amendment requires a state to license a marriage between two people of the same sex.
  2. The second, presented by cases from Ohio, Tennessee, and, Kentucky, is whether the 14th Amendment requires a State to recognize a same-sex marriage licensed and performed in a State which does grant that right.

Before I proceed with answers and explanations, I have questions of my own.  Why did James Obergefell have to hurt?  Why was he made to suffer and feel pain and indignity?  Why did the State of Ohio, full of “love thy neighbor” Christians, Sunday churchgoers, charitable contributors, and good Samaritans, have to cause this man sorrow within sorrow?

Don’t know what I’m talking about, do you?

The first case before the USSC was the matter concerning James Obergefell and his late husband, John Arthur. You see, John didn’t die from AIDS.  He didn’t die because a lightening bolt struck him down from the sky.  He died from amyotrophic lateral sclerosis, also known as ALS – the same disease that afflicts Stephen Hawking and caused a Facebook induced ice shortage last summer.

Three weeks before John died, the couple took a medical flight to Maryland, where same-sex marriage was legal at the time.  John was so debilitated from ALS that they never even left the aircraft… the wedding ceremony was performed in the airplane as it literally sat parked on the Maryland tarmac.  The couple then returned to Ohio.

After John passed, the State of Ohio refused to name James as John’s surviving spouse on the death certificate – thus compelling them to remain strangers, even in death.  James described this as a pain that was “hurtful for the rest of time.”

Now you may think James was a bit of a drama queen from the comfort of your sofa, office, or wherever you are reading this and sipping a latte, but the man is entitled to his feelings, especially those caused by the State of Ohio following the death of his most beloved.

Rather than comforting the mourning, the State of Ohio shoved a stake in his heart and twisted it.  They kicked him hard when he was down, broken, and in wretched, incurable pain… moments where 10 Commandments style love thy neighbor compassion is supposed to kick in hardcore.

In my upbringing as a Jewish Man, the Torah teaches us to give love to people when they are down, to aid them when they hurt, and to see them through the mourning process with gentle, loving kindness.

If James had a vagina instead of penis that is exactly what would have happened.  But he does not.

Unfortunately for the State of Ohio, James is a man and he is endowed with the very rocks that they relied upon to kick him when he was down. But he didn’t stay down for long.  He stood up and fought back:  He sued the State of Ohio.

I admire James Obergefell. I respect a man who grabs the ankle of the foot on his neck, stands up, and pushes back.

So here we are:

  • Was it unconstitutional for Ohio to have a legal system where James and John were denied the ability to marry?
  • Was it unconstitutional for Ohio to deny recognition of James’ and John’s marriage in Maryland?

“Under the Due Process Clause of the 14th Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights.  Most importantly, these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”

As a premise, it is extremely important to understand that we have a living legal system.  It is not written in stone to die an arcane and boring death.  Rather, our civilization is premised on concepts that have evolving applications as humans live on.  One such concept is liberty.  Another is self-determination.  A third is the concept of free choice.

“The generations that wrote and ratified the Bill of Rights and the 14h Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

“When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”  That claim originates in society:  In workplaces, in social clubs, on the streets, at cocktail parties, and ultimately – in our courthouses.

That principle applies here. “If rights were defined solely by those who exercised them in the past, then there would never be any progression in the law that coincides with society’s progression in wisdom and knowledge. For instance, slavery would never have been outlawed.  Women would have never been granted the right to vote. Handicapped persons would be left to fend for themselves – so what if they can’t wheel their annoying chair into a public bathroom.

These are all notions we take for granted today.  But they shouldn’t be taken for granted.  There was a day and time when the concept of abolitioning slavery was even more hotly debated than Gay Marriage Equality is today. Can you even imagine a world where women cannot vote? Where handicapped people don’t have a toilet to use?

Trust me, the Founding Fathers did not wonder how a person in an electric wheelchair would handle using a toilet in a shopping mall.  Point being, the American legal system is a living thing designed to evolve as Civilization’s application of its fundamental beliefs evolve and new questions arise.

In rendering its opinion today, the USSC referenced four basic principles and traditions that demonstrate the right to marry is a fundamental right under the Constitution that must be applied equally to same-sex couples. They are:

  1. The right to personal choice regarding marriage is inherent in the concept of individual autonomy – also known as freedom of choice.
  2. The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.
  3. Protecting the right to marry safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.
  4. The U.S. Supreme Court’s prior cases and the Nation’s traditions make clear that marriage is a keystone of our social order.

One of the most important aspects of the Court’s opinion comes from Loving v. Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on interracial unions.  In that case, a unanimous U.S. Supreme Court held that marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

The USSC reaffirmed that holding in Zablocki v. Redhail, 434 U. S. 374, 384 (1978), which held the right to marry was trumped by a law prohibiting fathers who were behind on child support from marrying. The USSC again applied this principle in Turner v. Safley, 482 U. S. 78, 95 (1987), which held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry.

Over time and in other contexts, the Court has reiterated that the right to marry is fundamental under the Due Process Clause.  This principle is not up for debate in the Gay Marriage case.  It had already been decided long ago.

Loving did not ask about a “right to interracial marriage”; Turner did not ask about a “right of inmates to marry”; and Zablocki did not ask about a “right of fathers with unpaid child support duties to marry.”  Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right.

In other words, when conducting a legal analysis of the question of Gay Marriage, we must use the analysis used in other iterations of whether or not specific classes of people could marry:  interracial couples, fathers who owed overdue child support, and prisoners.  In each instance, the question wasn’t one of specifics – whether or not the particular class of person had a right to marry, but whether or not the notion of marriage itself was a fundamental right… and it is.

Like the interracial couples, indebted fathers, and prisoners before them – same sex couples have a fundamental right to marry like anyone else.  Said differently, they are entitled to the same protection – equal protection – of a basic right, the right to marry.

My Take

Most importantly, we live in a country where the Government exists in a world of checks and balances.  It isn’t this mean dog that is free to roam the neighborhood and bully all the children it encounters.  It is chained to a tree and only kept alive by the will of its owners, the people it serves.

In regards to same-sex couples, Justice Kennedy opined that the State “cannot demean their existence or control their destiny by making their private sexual conduct a crime.”  In other words, Government has no business whatsoever in a person’s sex life.  Sex, love, procreation, and marriage are holy things that exist privately.

What is next?  If the Government can tell me who I can marry, can it tell me who I can have sex with? Is that limited to male/female or does it extend to certain races, or wealth classes, or religious/political affiliations?

Can the Government tell me what kind of sex I am to have? How often I have it? Whether I have it for pleasure, for love, or for procreation? What about when I have it… only after paying my taxes, voting for a certain candidate, or vowing my allegiance to a certain religious figure?

Can the Government dictate how many children I am to have – as it does in Communist China? Can it dictate whether or not my children are male or female (which can be done today using a centrifuge – “x” sperm is heavier than “y” sperm and separates out under g-force). Can the Government prevent people with certain genetic diseases from having children? What about certain intelligence levels? Religious beliefs? Political affiliations?

Today’s ruling isn’t only about Gay Marriage Equality – it is about posterity and legal precedent about the Government’s authority or lack thereof to control intimacy, relationships, and procreation.

Ruling against Gay Marriage Equality was not an option for reasons that have nothing to do with being LGBT. By placing a check on the Government’s power to control the most intimate of intimate human activities, the USSC protected present and future generations from tyrants and tyranny not known to us today.

Like the freedom of speech, freedom to associate, freedom from illegal search and seizure, and the litany of other freedoms most take for granted, freedom of intimacy and marriage is another layer of liberty that not only endows us with the right to do as we please in the bedroom, but acts in congruence with our other rights in the context of a society-wide system to keep the mean dog of governance from getting out of line and eventually out of control.

This is the crux of Civil Liberty:  Limiting the scope of governmental reach.

The Founding Fathers were experts in understanding the nature of totalitarianism and its roots in governance. They understood how rising to power, maintaining power, expanding power, and losing power corrupts.  The deal-making, the influence, the threats, the taking out of enemies, the stifling of contrary voices, the making of allegiances, etc. all have the effect of creating corruption that leads to loss of freedom, destruction of liberty, and ultimately death.

Just look at any dictatorship in the entire history of humankind.  I dare you to show me one where the masses had civil liberties.

At the same time, the Founding Fathers also understood that Government is a necessary evil. We need fire departments.  We need emergency rooms. We need busses and subways… and we need people to manage and maintain them all.

We can’t live in a structureless society.  We also can’t live without leadership.  Society needs tough people who make tough decisions that effect us all.  A country of 320 million people cannot have 320 million different plans of action when only one course is possible.

That said, our Founding Fathers hedged the risks inherent in endowing Government with certain powers by checking those powers with inalienable fundamental rights of the people it serves.

Deciding who you love, who you fuck, and who you designate as your one and only is up to you – and you alone – and the Government has no choice but to recognize that designation because its none of their business.

At the same time, Justice Kennedy emphasized that “religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”  In other words, if you don’t believe in Gay Marriage, don’t get gay married!

By expanding marriage equality to include LGBT persons, the USSC not only enforced equal protection for a well established fundamental right (the right to marry), but it also served to strengthen society’s shield against the seedling, birthing, and rearing of tyranny: A government that dictates what intimate things we can and cannot do and who we can and cannot do it with so that it has more power over us.

Congratulations to all those benefiting from the gift of freedom and recognition.  You deserve it.