"The 28th Amendment: For Better or For What"
by Erik Haugli

As you know, the Supreme Court handed down the death sentence to an uncommonly silly Texas law last month, and like the off-key melisma of a gang
of raging alley cats, wailing calls of a "culture war" have pervaded mass-media headlines: "Will gay marriage be next?"

With Canada preempting the conundrum and much of Europe poised to climb onto the fence next to the Netherlands and Belgium, apoplectic Americans seem electrically charged by the question. For some, the answer is "no way!" For others, the answer is "why not?" For me, the answer is "why bother?"

Minor Misogamy

I'm not much of a thumper for gay marriage, but only because I only barely understand the point of "legal" marriage in the first place. Why is it necessary for the state to validate a person's relationship with another human being? Is it so we can save a little time on paperwork? Is it because we relish bureaucracy so much that we have to register our love lives like we register dogs and Minivans?

I realize, actually, that people who marry have more to look forward to than being the central benefactor of the will and testament of their loved ones. The government guarantees that if a couple gets hitched, each half of that whole has specific rights that "officially single" people don't have: joint filing with the IRS, for instance; unfettered access to one another in the hospital; the right to refuse to testify against each other in court; spousal social security benefits, visiting rights in jails; and, obviously, the right to divorce.

Among other community-bestowed perks, married couples receive conferred retirement pensions, domestic violence protection orders, shared health insurance, family and bereavement leave, the right to continue leases signed by the spouse, the right to apply for joint foster-care rights and so on.

A contentious point before we continue: some people argue that there is a "marriage penalty tax" and that single people pay less in taxes than married couples. If that is the case, why would anyone get married or file jointly? Because they can write off their kids, for one thing, and the house they share, and the computer software they bought for their "family" business. What is it the fault of the independent recluse that he lives alone in a dusty apartment with piles of books and expired eggs in the refrigerator that he can't file jointly with, say, the misanthropic loner in the apartment downstairs?

God Knows

My incredulity about the "recognition" of marriage triples in regards to the so-called consecration of "the Church." Are people really so insecure that only in the presence of a dubious deity will the love of their life have meaning? Does the presence of friends and family fastened butt-to-pew contribute to the sanctification of snuggling?

Lucky for us, it isn't a crime to believe in imaginary things. And we have an inalienable right recognized (not bequeathed) by our forefathers to believe anything we want (and the right not to believe in those things).

So regardless of my conflicted thoughts about marriage as a social institution, I find myself of the mind that if one type of couple benefits from applying two signatures onto a piece of paper, all couples should have the same opportunity. And I think an Amendment to the Constitution prohibiting he and he and she and she as opposed to he and she from doing so is ridiculous, to say the least, and would be an obvious move to actively discriminate against fellow citizens who are--though not heterosexual--of the paired-off persuasion.

Yet, a proposal introduced to the House Judiciary subcommittee by Colorado Representative Marilyn Musgrav (a Republican, of course) seeks to amend the Constitution to just such an end.

As drafted, the proposal reads: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution nor the constitution of any state under state or federal law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

In California a few years ago, a similar proposition sponsored by William "Pete" Knight (a Republican, of course), passed barely to "define" marriage as a union between only a man and a woman. Proponents of the law claimed merely to be striving to uphold tradition--and many vehemently declined to admit that Prop. 22 was designed to prevent gay couples from garnering legal recognition.

Much of California already has on its books laws that give same-sex couples the right to bequeath their stuff to each other, among other things. The Knight initiative was basically a middle-finger gesture by religious types who fought a semantic battle because they saw themselves losing the social war.

For, like many wars, this one has fronts in other territories. Hawaii and Vermont already recognize unions, if not "marriage," between same-sex couples. The State of Colorado tried, but failed (thanks to Constitutional equal-protection guarantees recognized by the Supreme Court), to recant on local municipalities that had granted "special" rights to homosexuals.

Sometime in July, a court in Massachusetts is expected to rule on a case that involves eight same-sex couples seeking the right to marry. While this case is expected to fall in favor of gay marriage, the effect won't be recognized by other states because of the Republican-pushed Clinton-era "Defense of Marriage Act," which attempts to prevent such laws from spilling over state-to-state. The Act also defines "spouse" as a "person of the opposite sex who is a husband or a wife."

The Christian Right and others opposed to legalizing same-sex marriage fear that DOMA will not pass Constitutional scrutiny by the High Court, either. Thus the "need" for the Amendment, with its language effectively destroying any privileges granted by those rogues among the 50 states who would do so.

The suggested Federal mandate has powerful vocal support. Senate Majority Leader Bill Frist of Tennessee (a Republican, of course), agrees wholeheartedly with the notion. His response to the question of whether or not he supports a Constitutional ban on gay marriage: "I absolutely do, of course I do."

Appearing on ABC's "This Week," Frist went on to say, "I very much feel that marriage is a sacrament, and that sacrament should extend and can extend to that legal entity of a union between--what is traditionally in our Western values has been defined--as between a man and a woman. So I would support the Amendment."

For those still with me, let's take a look at a much cherished and much maligned document known as the "Bill of Rights." This Bill, erroneously sharing its first name with Mr. Frist, contains the first 10 Amendments to the Constitution. Its opening line? "Congress shall make no law respecting an establishment of religion."

Indeed, Frist's argument goes ker-splat on the windshield of our driving democracy. "Sacrament" is a Christian phenomenon, or at least a Christian process, and one that--if we want to follow the rule of the First Amendment--cannot be used to squash the insects of insurrection threatening to infest Frist's sanctimonious pulpit--this at least from his bug-eyed point of view.

Tradition Blows

In fact, when one reads the Constitution, one finds no reference to upholding traditions. In contrast, one does find Amendments that correct the fallacious bombast of people who would subjugate the many for the "benefit" of the few: Amendment 15, for example: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Traditionally, this was not a popular idea--even when it was passed, a large number of people opposed it.

Amendment 19: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex." Again, traditionally, not a big banner on the male flagpole of history, but something many fought hard to keep from flying--and they used "tradition" as a disclaimer.

If anything, the Constitution recognizes the people's right to question traditions, to live at odds with them and to challenge them when they get in the way of our pursuit of happiness. Laws change--laws are even created--to put a stop to traditions that trample on the rights of individual liberty. Otherwise husbands could still beat their wives all they wanted, some of us could own slaves, and beer would not be available on Sundays (let's pretend Oklahoma isn't a state).

The fear and hope that the Supreme Court's repeal of the Texas law banning sodomy will lead straight to gay marriage finds support in the dissenting opinion of Justice Antonin Scalia: "Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned."

Justice Scalia argues that the case of Lawrence v. Texas concerns a question of morality best left to local communities. "Even if the Texas law does deny equal protection to 'homosexuals as a class,'" he writes, "that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality."

This reasoning is in direct contradiction to a) science, and b) High-Court precedent. Even if he fails to see a right to privacy in the Constitution, Scalia should study up on his psychology and genetics. Homosexuality and the natural expression of that condition are not moral decisions. The latest on-off-switch theory of genetics hypothesizes that some people are born as open slates and that their sexual orientation is quickly decided; other studies show that some people are simply born gay while the large majority are born straight.

"Behavior" is the key word of the anti-sodomy argument, which generally brays, "We don't have a problem with homosexuals. We have a problem with homosexual acts." If straight people were told that they couldn't express themselves physically in the privacy of their own home because of the moral standards of the community, they would change those laws quick and get back to the business of their lives. Since homosexuals by their nature have the same physical parts, sodomy is really their only option. "Homosexual acts" is as much of a redundancy as "heterosexual acts."

The majority opinion of the Court, presented by Justice Anthony Kennedy, points out that "morality" is often the basic (and base?) argument used to prevent behavior some people simply dislike or do not understand. That is why the Court has in the past overturned laws that banned interracial marriage and prevented the use of birth control between married persons. In fact, the Court later extended the right to use birth control to "unmarried persons" as well because such a decision is a personal one made about an individual's own body.

One is not born with a genetic trait that makes birth control a natural extension of his or her lifestyle, nor is anyone born with a predilection to marry someone of a different color. So these cases can be rightly seen as arguments that even if homosexuality were a choice, it would be protected under the same Constitutional grounds.

The purpose of our government is to defend its people. It isn't to tell us who we can and cannot love or lick or live with, and it isn't to prevent us from making decisions that affect our corporeal selves. Besides, the question remains: What's the big hubbub? This Federal foofaraw over gay marriage concerns a minuscule number of citizens.

Whittling It Down

If Alfred Kinsey was right, 10 percent of the population is homosexual. This number, called vociferously into question over the years and disproved by various scientific studies in the last decade, was reduced to about 2 or 3 percent. So if we compromise and say 5 percent of all the people in the United States are gay or lesbian (can a person be both?), we come up with a figure of about 14 million people, a number considered way-high by most researchers. (See, for example, the recent Williams Project of the UCLA School of Law.)

Most research shows that there exists roughly half the number of lesbians as gay males. That gives us, say, a little over 4 million lesbians and a number just shy of 10 million gay males walking around on American soil--or, more accurately, American pavement, since most people live in cities.

Stick with me, 'cause I'm going somewhere with this. Demographically, many gay people are under 16 and thus a little shy of marriage. Furthermore, a large number of gays have reached retirement and are probably not dating all that much. Like the exceedingly predominant heterosexual population, some homosexuals are misanthropic, reclusive, independent-types with no interest in vacuuming. Also in common with heterosexuals, many gays and lesbians love more than one person in their lifetime without choosing to marry. Many more simply don't connect with Mister or Miss Right because of the erratic confluences of chance--and this despite the theory of gaydar.

So what are we talking about? How many straight people get married? On average, the number of married-couple households in the United States has declined from about 78 percent in 1950 to around 53 percent of all households today. The 2000 census reported that about 4.5 percent of American households consist of unmarried male-female couples, and it estimated that the number of households with same-sex couples is about 1.6 million. But of course, all same-sex couples are unmarried not by choice, but by the discrimination of law.

If we cheat by guessing wildly and postulate that these same-sex couples would increase if marriage were allowed (since there is an argument that gay people don't stay together because they don't have the legal and resulting cash incentives to mate for life), and say that half of all gay people found a match just like straight people do nowadays, we would have 3.5 million households consisting of same-sex couples. This is about 2.5 percent of the population of America, if the 280 million census count stands.

Uh, two and a half percent? We're going to pass a Constitutional Amendment to ban two and a half percent of the population from getting married? (And the number would be much, much less, really.) This is a number that, by its very nature, cannot change much. People do not "turn gay" later in life. This number is pretty much set.

Someone please ask Bill Frist and his counterparts how large a dent 2.5 percent can put into the "tradition" of marriage. This is a scratch on the fender, a broken taillight at best. And since divorce used to be extremely hard to come by, ask him about the dent in his shiny tradition caused by the nearly 50 percent of couples who legally end their marriages. This is a number that should have totaled the tradition, and yet it goes on--people continue to get married, even Jewish, Muslim, Buddhist and atheistic people without the benefit of a Christian sacrament.

The teeny minority of gays of the marrying kind has much of America tossing in its sleep, with nightmares of depravity and decadence that make Mardi Gras look like Sesame Street. A few of these distressed dreamers have taken their objections to a statistically rare but natural occurrence and fed it a steroid cocktail of paranoia and righteous indignation, helping it grow into a proposed Constitutional Amendment.

Surely, people have the right to moral consternation. They also have the right to defend themselves against it. If this thing moves, and it probably will, from the House subcommittee to the floors of Congress and then onto the States to be ratified, the money spent debating its merits will probably exceed the cost of simply legalizing same-sex marriage. Dollars aside, it will show that America, for all its claims of glory and equality, still has a long way to go before it forms a more perfect Union.


c. June, 2003 The Cool Cricket Company (tm)