Stephen A. Fuqua (SAF) is a Bahá'í, programmer, and conservation and interfaith advocate in the DFW area of Texas.

July 12, 2004

Revisiting the Defense of Marriage

As a matter of religious conviction—and standard English language definition—I have never felt that the term "gay marriage" meant much of anything, would, perhaps, even call it an oxymoron. When the government, however, tries to step in and reinforce that definition with legal statutes, I immediately react against it as an unwarranted and discriminatory encroachment upon civil rights.

To be fair, there was until recently nothing to encroach upon—there was no practical right or ability for a non-man/woman relationship to be legally recognized. We all know that. And yet, just as the now-banned anti-sodomy laws, this never sat well with me.

The legal institution of marriage brings dignity and respect to the couple; confers legal benefits, rights, and responsibilities (parental, health, survivorship); and promotes monogamous relationships as a stabilizing agent within society.

I am willing to give that dignity and respect to my (admittedly few) gay friends, as much as I am to any random couple in America. I'll grant that there is probably a majority in America that do not now and never will give equal respect to a gay couple—but that is not a reason to deny access to a legal institution. Undoubtedly a pithy comparison to the Civil Rights movement could be made here, but such broad metaphors are all too often the device of demagogues.

The rights and responsibilities of a spouse largely stem from the traditional familial relationships: father working, mother cleaning, kids at school, etc. But the second plank has changed considerably. Society too has changed, both apart from and in reaction with women joining the work force in greater numbers. No longer is it necessary for a women to stay at home, and no longer is their a strong societal need for high levels of procreation (considered true at one time by those who wished to fill America from coast-to-coast with Europeans, and true again today with nations such as Italy). Thus if we are to continue granting spousal rights, why deny them for gay couples? This does, I admit, presuppose a mindset of some openness, tolerance, progressivism—whatever you want to call it.


The past several years have brought the issue of homosexuality to the fore of national attention. In the 1990's the Matthew Shepard case showed the extremes of hatred for gays. The rise in the rate of HIV/AIDS infections amongst straights forced the pundits to realize that AIDS is not solely " the wrath of God upon homosexuals." Texas's anti-sodomy laws shocked those who did not know about them, and the Supreme Court's decision to overrule them shocked those who genuinely believed that sodomy should be punished by law. The highest courts of several states found that their constitutions forbid discrimination against same-sex couples in the granting of marriage licenses, resulting in state constitutional amendments, the creation of civil unions, and Massachusetts's now official recognition of gay marriages. Meanwhile a handful of mayors defied state lawmakers by granting licenses to same-sex partners, unsurprisingly led by San Francisco (gay-friendly Austin did not follow). And now in this election year we have begun the ultimate debate—whether the states should be allowed to recognize gay marriages or the Constitution amended to forbid it.


I believe that society has a stake in promoting the equitable access of its individuals to the resources of life, preferably through a market-based system with minimal though carefully placed regulation of affairs. When regulation would not demean the general welfare of the people rather than promote it, I attempt to maintain consistency in opposing it. Though our capitalist, federated Republic has its flaws, it functions well at its best and enshrines the rights of its members in a still-revolutionary manner.

The membership of this federation is, of course, composed of two classes: individuals and states. Within the Constitution and its amendments are laws affecting and regulating the relationships between and amongst the two classes and the federal government itself. Within this context decisions are meant to devolve to the local level wherever feasible.

Thus it is that I am inclined to leave the question of gay marriage to the states, who have already been recognized as the final secular authority in other matters of wedlock. Sadly, the Constitution, which strives to insure the tyranny of neither the majority nor the minority, has a flaw in this regard:

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." [Article IV, Section 1]

Wherefore, a marriage recognized in one state must be given equal rights and responsibilities in another state as that state grants to its own citizens. The tyranny of the minority is at hand.


What can and should be done to reconcile such a conundrum? No longer a merely theoretical discussion, may wish to bring rectification with what may be undue haste. It is true that the states are immediately placed in an unjust position. However, the short-term harm to the states is truly negligible, and would be a poor excuse for placing the greater emphasis on ratification than debate. We must grant a measured time for public discourse before attempting to legislate a resolution.

The issues before us are many and certainly call into question cherished assumptions of al idealogies. Can one state be allowed to impose its own morality on another? If not, should we then impose upon that state in denying its right to self-legislation? Or should we strike the requirement of states to recognize one another's licenses?

Going further, perhaps the legal rights of marriage itself must be refined. Should a non-child rearing, non-working spouse be granted the same pension, insurance, etc. as one removed from the workforce on behalf of the family? Some would say that these fiscal considerations are at the heart of today's debate.

The methods of resolving this conflict are many. The 20th century religious leader 'Abdu'l-Bahá said that "[t]he shining spark of truth cometh forth only after the clash of differing opinions." Let us then enter into civil debate, that we may arrive at the spark of truth with all deliberate speed.

8 Comments

clearly, you hold the Constitution of the United States in too high of regard, and have not studied it very closely... i pull this from your senator letter: "I urge you not to be among those senators who vote in favor of an amendment that would write discrimination into the United States Constitution for the first time in history."... stephen, your too intelligent to write that... the US Constitution is rascist and discriminatory, was drafted that way and will always remain that way, to the extent that its original text remains intact... indians were non-entities, as were all women, and black men counted as 3/5ths of a person for electoral college/census/house purposes but still could not vote... up until the time my soul was conceived (late autumn, 1969) all black people had been born under discrimatory, racist legislation and case law/precedent that had all been held under the auspices/authority of the Constitution... its just unfounded patriotic baloney to pretend otherwise... the Constitution was created with sufficient malliability and ambiguity to be used as a political tool, manipulated, and ultimately turned against the interests of justice and the citizenship of this country, up until the present day, most notably and recently with the bush/gore debacle in 2000, which ignominously ushered in the new millenium with further proof that the Constitution could still be used as an instrument to undermine the democratic rights of the citizens of this country, even as it has for the three centuries prior... don't believe the propaganda you were spoon fed growing up in this country... national sovereignty is an outdated fiction, but less of an outdated fiction than state sovereignty, and i'm surprised to see you coming down on the side of states-rights here... human social evolution demands a single sovereign at some point in the future, clinton even alludes to this in some of his recent interviews on his book... and in reference to your argument that it is no longer "necessary" for women to stay at home, and we don't need to have as many babies, so why not include gay couples in the social security/spousal subsidies/benefits, i cannot accept any of this, the premise, or the conclusion of this argument... first of all, the first sentence of this paragraph is dismissive and demeaning to the station of motherhood... "The rights and responsibilities of a spouse largely stem from the traditional familial relationships: father working, mother cleaning, kids at school, etc" ... initially, cleaning is probably the lowest priority on the list of a mother's duties, after at least educating/rearing the children, cooking/nurturing the family, running the household, etc., and furthermore, it takes a half a decade to get a child into school! so even in a small family, say two kids, three years apart, that's 8 years before the mother has these kids in school at least and that's with a relatively small family... 2nd of all, and tangenitially related to the first line of thought here, how can you say "it is no longer Necessary for a woman to stay at home"? what does this mean? does this mean that we've achieved, through modern, jetson-like conveniences and appliances a wonderful labor-saving home that doesn't require a mother? that there is no longer a need for pickling fruit or boiling jam on the farm and therefore we're freed from this historic burden? it is not now, nor was it ever, in my opinion, a question of necessity... women were once denied the right of employment (among others) and in rural societies the man and the woman usually both stayed home since home was the farm where they worked... unfortunately for our modern society motherhood has been marginalized and devalued by certain aspects of feminism, and we are left with generations of children being raised by television, preschools, or mothers who feel they have to apologize to the world for the choice of staying home, treated as 2nd class, backward conservatives oftentimes by the hordes of allegedly progressive-minded liberals who can't see past their own propaganda and ambition... materialism, commercialism, capitalism... these things, these value systems are driving our societies and dictating our gender roles and home life... society is unravelling, steve, children are suffering... kids are killing each other at school, obesity is an epidemic in school, teenage pregnancy, abortion, std's, drug use, crime, its all much more widespread than it was in generations past... but we're using the constitution to make sure that at least these kids won't talk about god while they're there, heaven forbid, don't even say his name... so where will they learn about god, steve, if it's no longer necessary for women to stay at home? i'm being melodramatic, i apologize, but the social security system is designed to place a value on the role women play in childrearing and the role family plays in society... i think that role is still important... i don't think it was ever "necessary" for women to stay at home, but i do think it's preferable for somebody to, and since the good lord did not bless me with boobs jubilee offered to do it... a lot of women will re-enter the work force once their kids are in school, but their earning potential is negatively impacted by their time away from their careers, and any ongoing sacrifices they make for their children... the way the system works it will work just as well for a mr. mom in this scenario... i'm glad to support this subsidy/benefit for children, but not for gay couples... and some pundits out there will be eager to tell me "what about gay couples with children?" to this i have to believe that this will be a statistically insignificant fraction of the gay marriages that would result, and that none of these children would represent the fruit of the gay union, since gay people, with or without any constitutional amendments, have a hard time having kids in homosexual relationships... although a cousin of mine in canada just managed to get a friend to impregnate her so her & her partner could have a baby... i love the cousin, i worry about the obstacles the child will have to overcome... anyway, stephen, i don't think that since we have less kids, or women can work, that we should subsidize gay marriages, or whatever that leap of logic was... the point is for the benefit of the children, and i think the benfit is still real...
man, i wish i could bill somebody for this... i better get back to work, or jub will have to pick up a part time job...
your brother,
brian

I think the wider issue as that the fascists, er, the control-freak Republicans in the Senate (esp. Frist, Santorum, etc.) want to make permanent the legal disenfranchisement of homosexuals in long-term committed relationships. The wording of the amendment makes it not just a ban on gay marriage, but also rules out civil unions, which becomes less about "defending culture" than it does about legalized oppression.

sounds like this issue is going south anyhow, that senator mccain seems on top of this issue, and has a compelling argument that i was unaware of for why the feds don't need to act here, which is convenient for me, since it allows me to extricate myself from the nasty position of agreeing with the aforementioned "fascists" on the outcome of, although not the reasoning behind, an issue:

"McCain argued on the Senate floor that there are "far less draconian" remedies, including the 1996 Defense of Marriage Act, which defined marriage for purposes of federal law as a union between a man and a woman and allowed states to refuse to recognize same-sex marriages legally performed in other states, and state constitutional amendments limiting marriage to heterosexual couples.

He said if the U.S. Supreme Court strikes down the Defense of Marriage Act or "state remedies to judicial activism fail," then amending the federal Constitution might be "appropriate." But he said the decision in Massachusetts to legalize same-sex marriages does "not represent a death knell to marriage." (McCain opposes marriage amendment)".


handy side-step of full faith & credit clause, convenient way to not alienate any constituents!

B – could you stick some line breaks in there? Kind of hard to read!

1. I’m mortified that I did not notice the incorrect statement about discrimination in the Constitution; that will certainly teach me to pay even closer attention to form letters (I did read it, but looked right by the fact that this said “Constitution” instead of making reference to the Constitution’s Amendments). You are correct; I did not write that line. NOW wrote that. Still inexcusable that I assented to including that line in my letter.

2. State sovereignty is largely an outdated concept, and one I frankly feel needs a complete overhaul. Something more akin to a provincial system makes far more sense to me in the long run. But we have states, and the Constitution of the United States and of those separate States guarantees and delegates certain rights and responsibilities to each party. Future is future, single sovereign and all that… of course. But today we do not have that sovereign, and the pact under which we collectively govern our affairs is at its core that same document enacted by Congress and the States in 1789. As an armchair interpreter of the Constitution I certainly would not hew to the Scalia/Thomas approach of “as it was then.” It is a living document, with living interpretation that can and does reverse itself on occasion. But to my knowledge the rights of the states have not been abrogated.

3. Out on a sociological limb, I declared that society no longer requires that women be stay at home mothers, and that society no longer requires that we push out as many babies as we possibly can. That is not to say what is individually preferable or socially acceptable—but I am talking of what is seen as the current social necessity. And we may need to adjust some of our thinking and policies accordingly. I do not speak of the spiritual ramifications of families, motherhood, etc. I write in context of what I perceive to be the society we are living in now, and the government we are living under now.

I was not making any implications about motherhood in my observations. I actually think you make strong points about the role of motherhood. That is what I was looking for with this blog—discussion, analysis of the situation. I alluded to the social security question as one relevant to the discussion at hand, but didn’t want to take over your ideas there. I whole-heartedly agree that a stay-at-home gay-playmate of an older man should not receive that older man’s social security. But I also would say the same when that older man's playmate is a woman. And while that is related, it is a separate issue from banning gay marriages via Constitutional amendment. I never made a suggestion that we SHOULD "subsidize gay marriages," as you put it. But I did suggest that the financial ramifications are part of the debate.

4. I love McCain’s willingness to go his own way! Doesn’t mean I always agree with him of course. Yes, let us look for the most appropriate remedies for a sticky situation. If financial issues like the above are the only issue, then legal statues can erase them. If the overwhelming social good, in all areas, is best served by denying homosexuals the right to legal wedlock, then we should do that—in the most appropriate time, place, and jurisdiction possible. (Do not mistake me—I am not turning around and suggesting that gay marriage would be detrimental to society. Just saying “if”).

i apologize for the stream-of-consciousness babble format, it's what i do... the god lord laughed at me yesterday, btw, and had me laughing at myself, in what i can only assume was a tailor-made lesson in the puniness of my perspective... new clients, two women, lesbian couple, both divorced from previous hetero relationships (that wrecked their credit - be careful what you pray for, same-sex unionistas, it might come back to bite you in the credit report) the younger of which was staying home with her son from that relationship and the older of which works as a trucker... an unscrupulous local auto dealership, whose name i won't mention for libel purposes (ryhmes with "bill chapman"-avoid them at all costs) just repoed their lone vehicle (not counting her big rig, which is what they drove in to the office in) for around town (which they were already being charged the usurious rate of 24% interest on) because they were a few days (like 4) late on their monthly payment, and refused to let them back in the vehicle (they had the money, had been on vacation, tried to pay) which, in my opinion, is part of the plan from these used car sharks, let folks go for about a year, get the most they can out of them, then catch them with a repo when there's still enough capital left in the car to maximize its resale value... anyhow, i talked to the head of collections, absolute shrew, told her she left us no choice but to do ch.13 (which benefits my clients but not the dealer) and she basically dared us to, so we had one filed by the end of the day, blocking the sale... anyhow, my point is this, ch 13 relief requires a certain amount of income, the vehicle is in the stay-at-home client's name, and the law doesn't have an easy way to count her partner's income as hers for this purpose... we'll get it done, it's not insurmountable, but it is a fine example that hadn't occured to me that just fell in my lap the day after i took the uncomfortable step of arguing on the side of the same outcome (although not the same rationale) as the dreaded right-wing fascist (as hitheroto tagged above) folks i'd rather stay out of bed with... so, yeah... complex issue, not sure where i come out on it exactly... still think the traditional family unit has the most to offer and is the cornerstone of society, but hate to see gay couples at a legal disadvantage in a case like the one i've got... bottom line for me is that i believe, as a matter of faith, that we're here in this world to develop spiritually... i believe this struggle is basically one away from selfishness toward selflessness... i believe the greatest catalyst for growth in this area is marriage and parenthood... too often i've seen married friends who don't have kids kind of cling on or revert to a roommate/selfish dynamic in their relationship and kids don't really allow for that dynamic to flourish as easily... although i do see some married w/o kids folks who seem completely in tune with the idea of serving each other, instead of asking the all too common, divorce precipitiating question of "how am i being served"... anyhow... yeah, marriage, good, kids, good, willing to be taxed & subsidize these values... don't think gay relationships fit the kid paradigm as neatly or as often... but i don't want to see gay couples taken advantage of on account of legal biases either... so, yeah... how's that for waffly conclusion...
greatful for the chance to laugh at myself,
brian

Intriguing anecdote. And there you go with the having kids thing again! =)

So this anecdote, in a vacuum, would encourage the justice-inclined amongst us to be in favor of civil unions at the least.

Now my question for you is this: do you see a strong rationale, regarding the moral issues (as opposed to legal/financial), for the government to be involved in granting or refusing gay marriages?

in answer to your question... after some serious thought, i've got to switch the rules... the bottom line for me is that we're talking about a sinking ship, and all of this discussion amounts to to so much speculation on how to bail out a little water, buy a little time, apply a couple bandaids... i realize it's not a without merit, the discussion, but my real answer is "switch governments... and then yes" ... and the government i have in mind is more of a theocracy, so they would be in the business of sticky moral issues and whatnot... but in the meantime, with the present government, probably not... probably not...
your g,
be

Treading shark infested waters here... you bring up a question I would love to address a bit more in depth, but it would have to be a rather abstract piece I think. The ultimate source for that discussion would, of course, be The World Order of Baha'u'llah.