I Don’t Understand

So the citizens of Kansas decided that laws aren’t laws until their enshrined in the constitution and voted to ban gay marriage . Actually they voted to ban any status which would grant the privileges associated with marriage, apparently afraid we’ll destroy civil unions for the straights just like we did marriage. Oh wait. This move mirrors fairly closely moves under way in Indiana. The State House voted to approve a consitutional amendment to ban gay marriage last month, and the Senate is expected to approve a similar measure before the end of this session. That’s not the last word, exactly; in Indiana it still has to be approved again by another congress (theoretically in 2007), and then go to a public referendum. So there is hope, but not much.

And I really don’t understand all this posturing and, well, hate. There’s currently talk of requiring Indiana’s public universities to use the same health and benefits plan as that used by employees of the state government. Both Indiana University and Purdue University offer benefits to domestic partners (of both the same and opposite sex) and there’s a law on the books prohibiting the state government from offering benefits to same sex partners. You can see where this is going. Did I mention that Garrett, my partner, works for IPFW , which, as a regional joint campus of IU and Purdue, offers the same benefits package as Purdue? Did I also mention that when I took my job at CC last year Garrett and I codified our relationship and registered as partners? I did? OK, so maybe I’ll get one of those fund-raising bats like Howard had, to collect money to cover health care when the state mandates I be dropped from Garrett’s benefit plan.

I’ve got to say it again, I just don’t understand. My Man Mitch , Indiana’s new [STRIKEOUT:fuhrer] governor campaigned on a platform of making Indiana appealing for business, stopping the problem of “brain drain” which has plagued the state and enforcing laws on the books instead of giving business and individuals a pass. As an educated “knowledge worker”, shouldn’t I be one of the people he desires to retain in Indiana? What motivation do I have to do so after graduation next year, when it seems like the entire popular attitude is opposed to a central part of my identity?

In regards to the final item on Mitch’s list, yesterday’s Journal-Gazette reported that local bar owners are upset that the State Excise Police are suddenly enforcing a ban on illegal electronic gambling machines. Regardless of whether or not you agree with the ban, you can see the logic: enforce the law, or change the law. I think there’s a strong argument to be made that ignoring laws based on the views of a particular administration or enforcement official is a dangerous precendent to establish. So how is gay marriage any different? Regardless of whether or not you agree with gay marriage, laws exist which currently ban it. So why don’t we just enforce those, and deal with the constitutional question if and when it arises?

Proponents of the amendment will tell you that protecting against “activist judges” who may strike down the existing law as unconstitutional is imperative. However, I question whether such protection is really necessary. A challenge was raised to the law late last year, and plantiffs lost. They chose not to appeal to the Indiana Supreme Court. This raises the question in my mind: if a segment of the population is too afraid to challenge laws in the highest court of the land, for fear of dangerous precedent or inciting public opinion, isn’t there something wrong? And isn’t there something equally wrong with further enforcing their status as second class citizens?

In reality, I think the argument regarding “activist judges” is something of a red herring. Wasn’t the judiciary established as separate from the legislature and executive to make sure neither over stepped their bounds? And doesn’t part of that check involving interpretting what lawmakers intended when they passed certain types of legislation, and additionally interpretting whether or not said laws are in conflict? How, by definition, can we have non-activist judges? It seems to me that the best judges are those who are passionate about the law, and passionate about the rights of everyone, including us sodomites. You’re free to disagree with me, of course, but it seems to me that the conservative movement is all for judicial activism when it suits them .

The Family Research Council will tell you that they don’t want to treat gays and lesbians as second class citizens, that gays and lesbians can marry — someone of the opposite sex , of course. In their position papers, they present the restriction on same sex marriage as a simple analog of the restriction of marriage between siblings or first cousins. I, of course, think there’s a fundamental difference. The restriction on marriage between siblings and close relatives serves an important public health need: we know that children of such marriages are more likely to retarded or suffer from birth defects. I suppose you can approach the issue from one of two sides: the restriction exists to protect future children from suffering, or the restriction exists to protect “society” from having to care for such individuals. Either way, there is no analagous situation with same sex marriage. I’ve yet to hear a convincing argument against gay marriage based on public health, and most seem to hinge on Biblical morality, which is why church and state are segregated.

There seems something inherently bilious for the same article which proposes that same sex marriage is equivalent to marriage of siblings to also accuse “homosexual activists” of improperly “hitch[ing] their caboose to the civil rights train.” The author, Peter Sprigg, gives a brief list of reasons racial discrimination is banned in the United States, ending with the comment “[p]lus, race appears in the Constitution.” He’s right, it is mentioned: in the context of blacks counting as 3/5 of a person when it comes to the census. I don’t understand how that is relevant; perhaps a new 3/5 Compromise is in order: gays can marry, but we’ll only get 3/5 of the benefits associated with it.

In closing, I’ve been thinking about this issue quite a bit recently. And I really just don’t understand. My best friend and parents both thinks that homosexuality is wrong, and Biblically immoral. I might not agree with that, but I understand how one reaches that conclusion. People frequently choose external source to base their external ethics on, and it seems that if you choose a literal reading of the Bible as your base, this is a valid conclusion. But we don’t get to choose the base for our society’s legal system; it’s been laid out by the founding fathers, and it has been consistently interpretted (as far as I know) to be religion-agnostic: that is, not making decisions which give preferrential treatment to one religion over another. How does that precedent square with making this decision, the decision that my relationship doesn’t matter as much as my sisters’?

And if you disagree with my conclusion that legal and legislative decisions shouldn’t be made on the basis of one religion or another, how does this seemingly rabid desire to ban same sex marriage square with what seems like complete disregard or willful ignorance of other Biblical admonisions? I truly don’t understand.