June 9, 2006
On the Homosexual Second Class Citizenship Amendment
by Steven Jonas, MD, MPH
The Congress failed to pass the so-called “Federal Marriage Amendment” (most accurately named “The Homosexual Second Class Citizenship Amendment”). One interpretation of the Bush/Frist/Hastert strategy on this issue is that they a) need to find anything they can to distract the country from the failed Bush Presidency and the failed agenda of the RRR, and b) they need to feed red-meat to their far-right homophobic base, without which their party would simply not exist in its present form. These are both true observations. But in my view there is another even more central one. The supporters of the Amendment from their legal community know very well that without it, in the absence of a Supreme Court that has totally abandoned the literal reading of the Constitution (as have the False Strict Constructionist right-wingers on the Court), “gay marriage” will someday have to become the law of the land. This, for both religious and political reasons they are totally opposed to.
The central issue here is that clause of the 14th Amendment to the Constitution which states: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Marriage in our country is a bimodal institution. While virtually all religious organizations perform marriages, the institution is covered in considerable detail by the civil law in each of the 50 states. For any marriage to be legal, wherever and by whomever it is performed, a civil license is required. Thus, under any literal reading of the Constitution, civil marriage between people of the same sex must be permitted, if they are to have “the equal protection of the laws.” The lawyers on the Right know this very well. That is precisely why the RRR campaigns so vigorously for amending the Constitution in this instance.
Tony Perkins, the president of the Family Research Council, was right when he said: "Unless in the Constitution ... we secure the definition of marriage [in their terms], a judge somewhere, sometime, will redefine marriage for all of America" (Mail & Guardian Online, 6-6-06). When Bush said that: "An amendment to the Constitution is necessary because activist courts have left our nation with no other choice" (Gay and Lesbian Leadership Smartbrief, 6-6-06) he was right. What he calls “activist courts” are of course those that persist in reading the plain language of the 14th Amendment and interpreting it literally.
The original Constitution discriminated against one group of people defined by their identity, the African-American slaves (and did not recognize the existence of another, the Native Americans). Otherwise, it promoted rights, not denied them. It took a Civil War to eliminate that original written discrimination and then another century of struggle before the meaning of the 15th Amendment, the Original Voting and Civil Rights Act, was actually put into enforceable law. This new amendment would reintroduce into the Constitution formal discrimination against one group of people, based on who they are, as people, not anything they might have done that violates laws other than those on the books that already discriminate against homosexuals.
Sen. Orrin “Holier-than-thou” Hatch put the RRR case very well: “As you all know, I don't believe in discriminating against anybody, but when it comes to traditional marriage, I draw the line” (Human Rights Campaign, 5-22-06). In Nuremberg in 1935, the Nazis drew the line on the Jews. If Hatch’s line is drawn, one can only wonder who would be next. If, for example, Ann Coulter has her way, it surely would be the “traitorous” and “godless” “liberals” (as she defines them) going perhaps to the camps, going perhaps before the firing squads, becoming the targets perhaps of Death Squads, perhaps burning to death at the stake. In Europe this is what Christian Churches of a variety of stripes driven by Coulteresque rage and intolerance of difference did to such persons over a period of hundreds of years from the Middle Ages through the 16th century. In my view it is equality before the law for all Americans that is the central issue in this battle. It surely will not end with these current votes.
Steven Jonas, MD, MPH is a Professor of Preventive Medicine at Stony Brook University (NY) a weekly Contributing Author for The Political Junkies (www.thepoliticaljunkies.net) and a Columnist for BuzzFlash.