Same-sex marriage is a fundamental right

By Menachem Z. Rosensaft New York Republican gubernatorial nominee Carl Paladino is far from alone in his bluntly stated opposition … Continued

By Menachem Z. Rosensaft

New York Republican gubernatorial nominee Carl Paladino is far from alone in his bluntly stated opposition to same-sex marriage. Pope Benedict XVI recently reiterated the Vatican’s uncompromising stance on this controversial topic: “The Church cannot approve of legislative initiatives that involve a re-evaluation of alternative models of married life and family,” he said. “They contribute to the weakening of the principles of natural law and … also to confusion about society’s values.” Along the same lines, Rabbi Noson Leiter, executive director of the ultra-Orthodox Torah Jews for Decency, has declared somewhat incongruously that “gay marriage poses an existentialist threat to religious liberty.”

Regardless of anyone’s religious or moral views on homosexuality, a review of the historical bidding seems to be in order. Not all that long ago, Americans also opposed marriages between Whites and African-Americans by a wide margin. In 1912, Rep. Seaborn Roddenberry, Democrat of Georgia, sponsored a constitutional amendment to prohibit interracial marriages on the ground that “intermarriage between whites and blacks is repulsive and averse to every sentiment of pure American spirit. It is abhorrent and repugnant.”

As recently as 1958, an African-American woman and a white man were prosecuted in Virginia for the crime of getting married to each other. “Almighty God created the races white, black, yellow, malay and red,” wrote County Circuit Court Judge Leon M. Bazile of Caroline County, Virginia, in his January 6, 1959 ruling sentencing Mildred and Richard Loving to one year in jail (suspended on condition that they leave the State for 25 years). “And,” he continued, “he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

It was not until June 12, 1967, that the United States Supreme Court unanimously reversed the Lovings’ criminal conviction and declared Virginia’s prohibition of interracial marriage to be unconstitutional. Chief Justice Earl Warren wrote in his decision that: “There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies [Virginia's prohibition of interracial marriage]. . . . Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival. . . . The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

Since then, times and attitudes have changed. According to an August 2007 Gallup Poll, more than three in four Americans – to be specific – 77% – approved of interracial marriage. That was up from 4% in 1958, 20% in 1968, and 48% as recently as 1994. In 1958, 94% of White Americans disapproved of marriages between “whites and non-whites,” as the question was then phrased. By 2007, the number of white Americans who disapproved of “marriages between whites and blacks” fell to 19%. Moreover, according to the same poll, 85% of Americans between the ages of 18 and 49 approved of interracial marriages.

According to a 1996 Gallup poll, only 27% of Americans supported, and 68% opposed, the legal recognition of same-sex marriage. By May of 2009, the opposition to such marriage had declined to 57%, with 40% declaring themselves in favor, and as of this past May, the number of Americans opposed had shrunk still further to 53%, while support of legalization of same-sex marriage had risen to 44%.

While the statistics may be interesting from a sociological perspective, we must not allow our constitutional rights to be determined by Gallup polls or popular referenda. Does anyone doubt that a majority of the good people of Virginia might well have voted to retain the ban on interracial marriage in 1967? Should the Supreme Court have deferred to prejudices that, I suspect, even most of the opponents of same-sex marriage find despicable today?

And what about the invidious 1935 Nuremberg Laws that criminalized both marriages and extramarital intercourse between Jews and Aryans in Nazi Germany? Does the fact that most Germans had no problem with this legislation make it any less reprehensible?

We must never lose sight of the fact that divisive rhetoric and demagoguery have consequences. The delegitimization or demonization of any group threatens our society as a whole. Any muddying of the separation of church and state encroaches on the religious liberty now enjoyed by all Americans. Unlike most European countries, the United States has never had an established church or religion, and most Americans like it that way just fine. “The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate,” wrote James Madison in 1785 in his Memorial and Remonstrance Against Religious Assessments.

Generations of immigrants, my parents and I among them, came to these shores “yearning to breathe free,” and Emma Lazarus’ poem engraved on the Statue of Liberty does not bestow this privilege exclusively on those of “your tired, your poor, your huddled masses” who happen to be heterosexual.

Menachem Z. Rosensaft is Adjunct Professor of Law at Cornell Law School and Distinguished Visiting Lecturer at the Syracuse University College of Law.

  • lepidopteryx

    Civil rights should never be subject to popular vote. It’s great that more people are in favor of legalizing same-sex marriage than ever before, but even if they weren’t, it would not make withholding the right to marry just.

  • WmarkW

    Forbidding marriage between races (or ethnicities) is just prejudice and discrimination. One of the purposes of marriage is to unite the sexes in child-rearing, and since we’re all homo sapiens, we can all mate, from the Bushman to the Finn.Today, we allow just about any two people of the opposite sex to marry because we don’t want government to decide which marriages make sense to permit, so we permit (with very minor exceptions) all of them. Most homosexual marriages would probably resemble DINK (double income no kids) marriages; we permit heterosexual DINK marriages, but DINKs are not the reason marriage exists.Marriage exists principally so:a) and b) can be covered with contracts, WHICH I DO SUPPORT. There are instances in which people of the same sex, not necessarily romantically linked, share housing and most their non-working time. Like two elderly widows who live together during their senior years. They should be able to creating a “specified de jure next-of-kin” arrangement, so anyone can choose a special friend who’s not a blood relative to perform that function.The line we cross by calling it a marriage is the equal right to pursue having children. If two gay men approached a fertility clinic and said “we’d like to have a baby.” The doctor would say “One of you can fertilize a donor egg.” The couple says “We want the baby to be the offspring of BOTH of us.”Doctor: That’s impossible.That’s where I’m not going.

  • gladerunner

    wmarkw:You lose me here. your ‘c.’ is an option, not a requirement. Non-childbearing m/f couples are not barred from getting married simply because they can/will bear no children. There was no fertility test, or even fertility quiz when I last filed the proper forms to be legally enjoined in marriage. And bearing or pursuit of bearing children is not a ‘right’ it a simple function of biology. Birds do it, fleas do it.

  • WmarkW

    You lose me here. your ‘c.’ is an option, not a requirement. Non-childbearing m/f couples are not barred from getting married simply because they can/will bear no children. No, but no married couple would be forbidden to have children. And if they need some technological assistance, usually the medical community will make it available.Would government ever grant two people a marriage license on the condition they not attempt to have (biological) children? Well, I won’t sign onto gay marriage unless they make a promise like that. And, IMO it stops being marriage at that point, and become a contractual mutual support arrangement.

  • FarnazMansouri2

    Equal protection.Period.

  • gmd1952

    Heterosexual marriage is a fundamental right as the def of marriage has always had the element of male/female, always. Common law, religious decree, legislative action, American court judgments since the founding of the country they all speak to marriage being between a man & a woman.The Govts interest in marriage has historically been limited to simply requiring the two gender forms be present. The govt doesn’t care about function, motive, or orientation. None of those concerns appear on a marriage license. Speaking of license the govt doesn’t empower a couple to have children it simply creates a social institution that provides for an orderly and stable environment in which a child can be raised. In that regard it is much like a driving license. The aptitude and skill set for driving is internal. People can drive and drive well without a license. The govt simply creates an orderly and stable environment for them to do so in a way that reduces risk of damage.The govt isn’t regulating personal sexual behavior it is regulating social behavior in the least intrusive way possible.

  • cornetmustich

    Of course it is.

  • DanielintheLionsDen

    WmarkWYour fears are certainly far afield from the mass grass-roots movement for gay people to have the right to marry.Let me please reassure your fearful heart that many gay people, both men and women already have children, and they got them the old fashioned way. I know that it may be hard for you to imagine, but without going into anything very graphic, just, “think about it.”What is really driving the fertility industry and the subsequent fertility “experimenation” that you fear?Straight people, not gay people. Gay marriage is not likely to change that.

  • WmarkW

    Let me please reassure your fearful heart that many gay people, both men and women already have children, and they got them the old fashioned way. Two men want to have a biological child together. Not going there.

  • gladerunner

    wmarkw:That’s absurd, so absurd that I think it not true. You are telling me that THIS is the reason you are against gay marriage? Because you think that it’s obscene to manipulate biology wherein two males can produce a child? That THIS is the point that the concept of gay marriage crosses the line? That’s utterly ridiculous; it’s an enormous and highly convoluted red herring.“I fear creating a new-fashioned way specifically for them.”

  • gmd1952

    “Does anyone doubt that a majority of the good people of Virginia might well have voted to retain the ban on interracial marriage in 1967?”Wrong question. Would the people of the entire US voted to retain the ban? The answer is, “No” The court wasn’t getting ahead of the people for it had already been 3 years since the passage of the Civil Rights Act of 1964. Only 16 states enforced the ban by the time SCOTUS ruled.As mentioned earlier SCOTUS has gotten ahead of the Legislative process in one area, abortion and that has been disruptive to finding an accommodation the country as a whole can live with.If SCOTUS expands the definition of marriage to include same sex, the people do have recourse, a constitutional amendment. 36 states already support the traditional def of marriage and precipitous action by the court could trigger an amendment drive that would nullify the court’s ability to judge the matter.

  • bobbarnes

    I think Rep. and Civil Rights leader, John Lewis said it best:”This discrimination is wrong. We cannot keep turning our backs on gay and lesbian Americans. I have fought too hard and too long against discrimination based on race and color not to stand up against discrimination based on sexual orientation. I’ve heard the reasons for opposing civil marriage for same-sex couples. Cut through the distractions, and they stink of the same fear, hatred, and intolerance I have known in racism and in bigotry.”I see the usual people posting their usual diatribe that stems from their deep-seat, bigoted position. It’s nothing but Psych 101 rationalizations.

  • gmd1952

    I suggest you read my posts more carefully before you comment.I understand that the majority of Americans disproved of interracial marriage in the 60′s, but that isn’t what I wrote. I wrote that Americans might well had voted not to retain the ban. They had voted 3 years earlier for the civil rights act of 64′ and of the 30 states that had a ban on interracial marriage 14 no longer enforced the ban. On a personal level many Americans thought it inappropriate to marry someone of a different race but as far as supporting a legal ban that had already changed substantially by the time the court ruled in 1967. I stand by my comment that I don’t believe if it had come to a vote the people of the entire US would have voted to retain the ban. “The Govts interest in marriage has historically been limited to simply requiring the two gender forms be present. The govt doesn’t care about function, motive, or orientation. None of those concerns appear on a marriage license.”Is that a factual statement?”Heterosexual marriage is a fundamental right as the def of marriage has always had the element of male/female, always. Common law, religious decree, legislative action, American court judgments since the founding of the country they all speak to marriage being between a man & a woman.”Is that a factual statement?Care to explain how these two factual statements end up as you say, “a diatribe that stems from a deep-seat, bigoted position.” You seem like an intelligent person so I’m looking forward to your explanation.

  • bobbarnes

    @gmd1952, you were quite clear. You are just not in touch with your bigotry which comes shining through for the rest of us. You are putting a lot of energy into your rationalizations, and trust me that’s what your last three post are.Furthermore, even into the early 70s most people harped on race as you do gender. They were incapable of forward thinking much like you. Back then, my great uncle said, ” next we can marry our dogs.” does that sound familiar? BTW, disapproval of interracial marriage didn’t cross the 50% mark till the 90s, some 23 years after Loving v Virgina. SSM is at 50% now. ironic, huh?

  • DanielintheLionsDen

    WmarkW Can’t gay men create Frankebabies without gay marriage?This is a problem that I have never heard of. I do not think it is relevant to the subject.

  • gmd1952

    I get you now Bob. Just like Mc Carthy who saw a communist behind every tree you see a homophobe behind every post You have even adopted his tactics of personal attack, smear, and innuendo. “Are you now or have you ever been….”Our sin in your eyes is that we disagree with you and don’t know our place.Seen plenty of folks like you in my day.

  • WmarkW

    Has it occurred to you that all we have to do to mitigate your fears of Frankensteinian biology is to make that hypothetical, theoretical procedure verboten? Many other procedures are illegal. Why wouldn’t that work for you?It wouldn’t work for the same reason Griswold and Roe (correctly) overturned laws against particular practices on the grounds that family planning was not a governmental matter. If two people are married and fertile, who’s to tell them they’re not allowed to procreate? If we created a kind of union with all the responsibilities of marriage but without the expected right of biological procreation, I could live with that. But it’s not marriage.

  • lepidopteryx

    GMD, even if 100% of the US population had been aginast inter-racial marriage, banning it woudl have still been wrong. Same goes for same-sex marriage.

  • gmd1952

    lepidopteryx,Same sex marriage and interracial marriage are two different things. One has to do with race as in “interracial” and the other has to do with Gender.What is the difference between a white man and a black man? Only the color of the skin, nothing else. There are huge and significant differences between a man & a woman though. That doesn’t take a rocket scientist to figure out, does it?Social institutions and policies that promoted racial segregation were dismantled and the right of association defined in a way that promoted racial integration because of the harm Segregation posed to blacks. In the same way SSM promotes social policies and creates a social institution that promotes gender segregation in a way particularly burdensome & harmful to children who would, through deliberate social policy, be deprived of either a mother or a father.As long as people bought the racial segregationist line of “equal rights” & “Live & let Live” Blacks were burdened & harmed by “Jim Crow” laws. It was only when the country started to listen to Blacks as they told of the harm done to them that those laws began to be challenged and dismantled.So also when we start listening to our children and their simple desire to be raised by their mother & father will we find the courage to affirm Heterosexual marriage as the best institution in which to rear children and deny the destructive “separate but equal” call of SSM.Does any one here seriously think that a child doesn’t want to be raised by his/her mother & father? That one parent and the gender that parent represents is irrelevant to the child?

  • lepidopteryx

    GMD,

  • gmd1952

    Lepidopteryx,Is that what you envisioned for your daughter as the ideal, as a “good thing” to be raised by only you and not have her father equally in her life? Do you think all things being equal that is what she wanted, not to have her father as much in her life as you are?.You dealt with a tough situation the best way you could, I get that. It is an entirely different matter to promote as a social good, something to be celebrated a policy that deliberately deprives a child of either a mother or father. It is a policy that you rejected in your life, right? Not good enough for your children, but a good thing for other children?When you care for other children as much as you care for your own you will see things differently and understand why so many seek to keep the traditional definition of marriage, not because we hate gays, rather because we love more children than our own.

  • gmd1952

    As a man, husband, and father I reject the idea a father is, “just another adult member of the household.” Fathers make a unique contribution to child rearing. Other males may follow in a Father’s steps, but not fill his shoes.

  • gmd1952

    Lepidopteryx,I ask specific questions and I get “talking points” for SSM, I get it.Do you know any gay couples with children that refer to each other as “Parent A & Parent B”? Don’t they use gender specific titles like “Mother” “Father”?When they use gender specific titles don’t they use the one that references their gender only? Do you know of any gay couples where one is called, “Mom” and the other one is called, “Dad”? I mean it’s, “Heather has two mommies,” right? So even with gay couples gender is relevant.You wrote that your daughter’s father had liberal visitation rights so when it came to your life and your daughter’s life didn’t you through your action repudiate the talking point of, “The number and gender of those people is irrelevant.”You gave your daughter what you deliberately withhold from other children to satisfy your political point-of-view, One Father who was a male and one Mother who was female.At the end of the day you have to ask yourself how much of your position proceeds from your desire to justify your own choices and how much to promote SSM.

  • lepidopteryx

    GMD, I didn’t give my daughter’s dad visitation rights because he had dangly bits, and I thought that she needed to be around someone so equipped. I gave him visitation rights because when I told him I was pregnant and that I had decided to carry the pregnancy, I gave him the option of being a parent or not being a parent. He wanted to be a part of his child’s life. Had he decided that he was not ready to be a parent,I would have let him walk away with no strings attached. So I fail to see how I am seeking to deprive other children of what my child had. I want them to have exactly what she has – people who love her, and would throw themselves in front of a speeding locomotive for her sake.If I had gotten pregnant using an anonymous sperm donor or had adopted her, I certainly wouldn’t have been seeking out the donor or the birth father in order to provide her with a daddy, nor would I have gone out and married some random guy for that purpose. I would have raised her with one parent – me.

  • gmd1952

    Gender is only about plumbing? “Dangly bits?!” What an archaic point-of-view. What happened to the last sixty years of advancement in psychology & sociology?The belief that all children need are loving adults is an adult self-justification for the adult failure to establish a stable and meaningful relationship with the opposite sex. Children simply don’t think that way. They quickly know they have a mother & a father and they strongly desire to have them both in their life. You honestly believe children don’t have this innate desire to be loved and raised by their mother & father? Just think back to your childhood didn’t you strongly desire to be known & loved by your mother & father?You can pretend and ignore this is what children think but it is a thin facade of self-justification and centers not on a child’s well-being but on what you want for your life.

  • lepidopteryx

    What made my relationship with my parents special to me wasn’t that one went potty sitting down and the other standing up. It was that they were the people who came running into my bedroom in the middle of the night when I woke crying from a nightmare. They were the ones who took turns sitting up with me when I was sick. They were the ones who celebrated my childhood milestones, such as losing baby teeth, as though they were high holidays worthy of international recognition. They were the ones who went without things they needed in order to make sure that I had the things I needed. They were the ones who had my back no matter what. And none of those characteristics is dependent on anatomy.

  • gmd1952

    Good enough for me! I just wanted folks to see how deeply you have drank the kool-aid to justify your own life choices and support SSM.You had a mother & a father who loved you, Not two or more randomly chosen adults whose gender was irrelevant. A Mother & a Father, the only two humans in your life that have those titles. A special relationship so central it is enshrined in our language and even the LGBT community doesn’t mess with the words.We have taken this far enough so if you want have the last word.

  • gmd1952

    “I really don’t understand why you can’t see that the relationship between the parents and the children is what matters, not who has which naughty bits. Posted by: lepidopteryx”As I wrote earlier you have the archaic and unscientific view that gender is only about plumbing. That males and females are the same except for as you put it, their naughty bits. This view was popular for a time in colleges until the overwhelming scientific evidence that males & females are different made such a view untenable except in isolated ideological circles.Science affirmed there are significant differences beyond plumbing between males and females. Science affirms there is a factual basis for the gender specific terms of mother and father. A basis you are in denial of. In classic Orwellian fashion you have dropped from your vocabulary, “mother” & “father” substituting what you believe is the genderless word, “parent”. Ironically you deny the primary definition of “parent”: one that begets or brings forth offspring and instead use a secondary definition: a person who brings up and cares for another, but you can’t even sustain that line of reasoning in your own post for you start to refer to your parents as “mom” & “dad”.I want all children to have the opportunity to be raised by a loving “mom & dad” and I especially don’t want children to be deprived of that opportunity through a deliberate social policy that will deprive them of either a mom or dad because it doesn’t fit with some adult lifestyle choice.

  • lepidopteryx

    GMD, I refer to my parents as “Mom” and “Dad” because that’s what I grew up calling them, and after almost half a century, it would feel strange to suddenly start referring to them as “Omar” and “Shaniqua.” My parents happen to be a heterosexual couple. That does not make them innately better qualified to bring up children than any of the gay and lesbian couples I know who are parenting kids.

  • markus4

    Sorry GMD, you are quite simply wrong. Your preconceptions and bigotry have blinded you. Where the facts of race and sexuality converge is in the truth that neither is chosen. It is a part of a person’s nature, something that simply is. When did you choose to be heterosexual? In reference to your continued bleating about Mummy and Daddy, in my own case I would have much preferred having one or two loving parents of either gender rather than the two sad, dysfunctional individuals that I ended up with (as much as I loved them). One day this whole “debate” will seem as silly and stupid as the previous “debate” on inter-racial marriage. Someday, in my lifetime I hope, Love and Justice will prevail. I hope you live to see it.

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