Prop 8 And The Same-Sex Debate (Hal Cohen)

  Dec. 23, 2008 (World News Trust) --- Let me begin with some erroneous suppositions:

  A) America is a Christian nation

  B) America is a Democracy

  C) Democracy means majority rule

  D) Activist Judges have legalized gay marriage

  In the courtroom scene of “Alice in Wonderland,” a witness doesn’t know where to begin his testimony. He is counseled to begin at the beginning, continue until he gets to the end, and then stop. As I believe this is a wise course of action, I intend to follow that good counsel.

  The 1^st amendment to the Constitution, the cornerstone of the Bill of Rights, does more than merely guarantee freedom of religion -- the “Establishment Clause” specifically prevents government from promoting one religion over another. The day that was ratified the country was legally estopped from being a “Christian Nation.” As a Jewish person this makes me happy. As General Colin Powell eloquently said about President-elect Obama, even if he were a Muslim, the Constitution prohibits religious litmus tests for public office.

  America was originally founded as a Republic. I refer to the Pledge of Allegiance: “... and to the Republic ....” We are far closer to a democracy then we were when founded. Governors used to choose our Senators, and there are now exactly two offices in the country that are not directly elected by the people -- President and Vice President.

  Prop 8 in California expresses the will of the people and therefore should remain the law. This nation is actually a hybrid between a republic and a Constitutional Democracy. The purpose of The Constitution is to codify in law the principles to which governments must adhere. To understand what those principles are, one must look to the Declaration of Independence, which argued the legal basis for our separation from the British Empire. The principle role of government according to that document is to secure the unalienable rights to which all mankind is entitled.

  These unalienable rights are not conferred upon us by the will of the majority. They are endowed to us by our Creator. They are unalienable which means they cannot be separated from us. A Constitutional Democracy is not a majority rule government. The role of a Constitution is to prevent a majority from depriving rights to a minority.

  Let us now talk about these heinous activist judges who are forcing same-sex marriage down our throats. For starters, these judges are not activists, and they have not done what they are being accused of. None of the judges in Massachusetts, California, or Connecticut wrote so much as a word condoning same-sex marriage. What they did was rule that as a matter of law, excluding marriage to same-sex couples violated their Constitutions. Why did they rule that way? They had no choice.

  The 14^th Amendment’s equal protection clause states that every citizen of the United States must be treated the same under the law. From a purely legal standpoint, marriage is a contract entered into by two people. The ramifications of this contract extend to tax issues, employer provided health care, hospital visitation, estate preparation, and family law among others.

  In the interest of disclosure, and to reassure my mother, I am a heterosexual male. I originally wrote “straight” but I realized that writing that implied that not being straight was a negative state of being. I am of legal age to enter into a contract. I am eligible to marry. My not having done so to date is irrelevant. I should be able to marry any other person who can legally enter into a marriage contract. Many people, however, would deny me that right if the other person happened to be the same sex. Those people would deny me a Constitutional right, an unalienable right, because they don’t like the choice of person I chose to exercise my rights with.

  Same-sex marriage opponents argue that allowing it changes the definition of marriage. They argue that for thousands of years marriage has been between a man and a woman. These bible-thumpers conveniently ignore Jacob marrying Rachel and Leah among other examples of polygamy in the bible. They argue that marriage is a sacrament. They claim that allowing same-sex marriage will require us to tolerate not only the aforementioned polygamy, but bestiality. A politician went to the floor of congress to scream about allowing a man to marry a box turtle.

  Let’s address these concerns. First of all, let us remember that we are talking about a legal marriage. Marriage as a sacrament has no place in this discussion. If marriage is sacred then the government has no business sanctioning it. Likewise, if a religious institution performs a marriage ceremony the government has no authority to prevent it. Governmental marriage licenses therefore cannot be denied a couple on religious grounds, and when a cleric performs a ceremony the government can say that they cannot do anything.

  The slippery slope argument does not pass the smell test. The polygamy portion of the argument fails because legally and constitutionally, you can say that under U.S. law a person can only be married to one other person at a time. The bestiality argument can be dismissed because we are talking about a legal contract. Animals have no legal ability to consent to enter into a contract.

  In short, the legalization of same-sex marriage is nothing more nor less than the enforcement of the concept of equal protection under our supreme law- which is not the bible, but the Constitution.

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  Hal Cohen is a writer living in Manhattan. This email address is being protected from spambots. You need JavaScript enabled to view it. This e-mail address is being protected from spam bots, you need JavaScript enabled to view it .