On Same Sex Marriage, Kim Davis, and Same Sex Adoption

Conservative Christians are rallying behind Kim Davis, the Kentucky clerk who refused to issue same sex marriage licenses because doing so goes against her religious convictions.  Her refusal to comply with the law forced a judge to find her in contempt of court after refusing to comply with a court order.  She was jailed and then released.  Conservative Christians in the USA feel their religious liberty is being attacked.  Perhaps it is in a way.  The problem here is a fundamental one.  What does a religious person do if the law of the land goes against their religious beliefs?  Conservative Christians should bear in mind that like them, Muslims believe God’s wishes supersede man’s wishes.  Kim Davis felt she must break the law because God comes first.  What happens of a Muslim feels the same way?

Well that happened many years ago.  Muhammad Ali, perhaps the greatest boxer of all time defied the law of the land because he opposed the Vietnam war.  Like Davis, Ali was jailed and served time for his disobedience.  When he emerged from prison, he was still a great boxer, but he was not the same boxer he had been.  Today, Muhammad Ali is nearly universally revered in the United States and for good reason.  While not a perfect man by any stretch of the imagination, he is a great man.  Not only did he become one of the greatest boxers ever, he did so at a time when black athletes had everything against them.  He won Olympic gold in 1968, and was refused service in a diner in his own country because of the color of his skin.  Yet despite his bitter disappointment, a disappointment which caused him to throw his gold medal away, he persevered.  He could certainly talk the talk, but he also walked the walk.

But when he went to jail for refusing to serve in the army, how did conservative Christians view Ali?  They ridiculed him.  They said he deserved his jail sentence.  They said he was un-American.  They said they had no time for black radicals and this Islam thing they were all on about was dangerous.  Coming off of calling Martin Luther King Jr. a Communist and a threat to the United States, they condemned Muhammad Ali and made light of his religious convictions.

But when Kim Davis, a Christian followed in Ali’s footsteps, all be it for a different reason, Kim Davis became a hero and a rallying point.  It is easy to condemn an adherent of the other religion, but when an adherent of your religion suffers the same punishment, that suddenly becomes wrong.

I say all this not to condemn Davis and those who support her.  I say this to give them something to think about.  Because they feel under attack, the issue of what to do when your religious beliefs conflict with the law of the land is not really as clear cut as you might think.  Muhammad Ali acted as a peace loving Muslim when he went to jail, much the same way Cat Stevens did, and has done ever since his conversion.  For others, however, religious conviction has been more radical.

John Brown was a Christian of deep convictions.  He was so convicted that slavery was evil, he turned to violence to free some slaves and killed some federal law enforcement agents as a result of his efforts.  He was captured, tried, convicted, and executed for treason.  John Brown was a radicalized Christian.  He also happened to be right on one level, and perhaps wrong on another level.  Today’s Christians, who forget or are ignorant of history, do not realize that radicalization can occur in their religion as well as for Islam. 

If the Supreme Court of the United States were infallible, then things would be much easier for everyone.  “The Court has spoken” would give us all direction.  But the Supreme Court is not infallible.  The Supreme Court gave us the Dred Scott decision, one of the most infamous legal decisions in history, and the most infamous legal decision in US history.  It took a Constitutional amendment and a civil war to undo that one.  Thanks Supreme Court.  Although Dred Scot – a ruling which enforced slavery – was morally reprehensible, it was legally correct in my opinion.  And I think this is where Americans need to start looking if they want to deal with the dilemma of faith based disobedience.

You see, same sex marriage has followed the course of slavery except that we have not had a civil war just yet.  Before the recent Supreme Court decision mandating same sex marriage across all 50 states, the issue was decided on a state by state basis.  Same sex marriage was legal in one state, and illegal in another.  Before the civil war, there were slave states and free states.  Slavery was decided on a state by state basis.  This proved an unsustainable compromise and it was this compromise that the Dred Scott decision upheld.

I said earlier I believe Dred Scott was legally correct.  Here is why, It all came about because of the belief that “All men are created equal” and that since Scott, a black man, was a person, he was equal to any other person.  Slavery therefore constituted clear discrimination.  In addition, the Constitution refers to “we the people.”  How can one class of person have the blessings of the republic while another class of person does not?  This is a very logical argument.  But the Supreme Court ruled that when these documents were written, black people were not considered fully human.  They were considered partly animal.  And they were right.  Thomas Jefferson who wrote that “all men are created equal” did not think of the black man as a man.  He was a slave owner and happy to continue the practice.  To him, this applied only to white people.  Dred Scott argued he should be a citizen of the United States because he was born in the United States, and because he was a person.  The court said that it was universally understood by the founding fathers that black people were not people in the true sense of the word.  Indeed, for apportioning electoral college votes, black people were considered 3/5 human at the time.  The Supreme court came to an absolutely wrong conclusion morally, but a right conclusion legally.  This is why Abraham Lincoln had to push for the 14^th Amendment and fight a civil war in support of it.  (The 14^th Amendment was added in 1868, three years after Lincoln’s death). 

The issue of same sex marriage, is similar, but it lacks a Constitutional Amendment.  In the recent Supreme Court decision affirming same sex marriage across the country, the Court interpreted the Constitution.  It did not add to it.  Indeed, the Supreme Court does not have the power to add to the Constitution.  Only the people can do this.  So while the 14^th Amendment solves the issue of slavery legally, the Supreme Court decision is only a legal interpretation.  And of course, interpretations are open to debate.

In California, the people voted to amend the California Constitution to define marriage as an institution between one man and one woman.  This initiative was known as Proposition 8 and it was voted in by the people.  I voted in favor of Proposition 8 because I oppose same sex marriage, though not on religious grounds.  More on that later.  When Proposition 8 passed, the gay community and gay rights activists were outraged.  They filed a legal challenge to Proposition 8 and the California State Supreme Court agreed and threw Proposition 8 out.  This was a disturbing decision to me because in my view, the people have the right to define the Constitution.  That right was taken away from us.  As a side note, although I live in Australia, for voting purposes I am a California resident which is why I was allowed to vote.

The California Supreme Court said that Proposition 8 went against the spirit of both the state and federal constitution.  The problem with that decision is that neither constitution says anything about marriage.  It’s Dred Scott all over again but for another reason.  When the State Constitution was made, and the federal one for that matter, it was universally understood that marriage was between one man and one woman.  It is why the Supreme Court consistently upheld laws against polygamy. 

If you look at various polygamy court cases such as Reynolds V United States and Miles V United States, both of which involve Mormons, The Supreme Court had no problem with the anti polygamy laws.  In Miles V United States, the court ruled in favor of the polygamist but only because the law of Utah at that time said that a wife could not be forced to testify against her husband.  Since Miles’ second wife testified before it was shown that Miles had a first wife, the ruling against Miles was vacated.  The court ruled that congress would need to close this loophole, something congress did.  Today, spousal privilege still exists but exceptions would remove the difficulty prosecutors used to have in polygamy cases. 

My point is that marriage was universally considered to be between one man and one woman.  No one back then explored gay rights but more importantly, no one except Mormons questioned the right to polygamy.  Mormons believed that it was their religious duty commanded by God to engage in polygamy.  So just as it was universally understood that “all men” referred only to white people – a sad but true fact – so it was universally understood that marriage consisted of a union between one man and one woman, not one man and two women.  The various polygamy and bigamy laws enforced this notion.

Today in the United States, this is no longer the case.  Many people believe marriage is a relationship between one consenting adult with another consenting adult regardless of gender.  The reason I am disturbed by the Proposition 8 reversal is because a constitutional definition is exactly what the country needs and the California State Supreme Court denied the people their legal right to change the state constitution because such a change would violate the Federal Constitution even though said Federal Constitution says absolutely nothing about marriage.

But how far can the people go when it comes to changing the Constitution?  When should the Supreme Court over-rule a voted for Constitutional change?  Let us suppose, as a hypothetical, that people amend to change the Constitution to ban Islam.  I use this example because today, many would be in favor of it.  Such a law is clearly illegal because it violates the First Amendment.  So in order for a ban on Islam to become law, the people would need to amend the Constitution vacating the First Amendment or changing it to exclude Islam.  Would the Supreme Court have the right to overturn such a change?  Yes it would because this change clearly contradicts the existing Constitution.  There is no doubt such a change contradicts the Constitution.

This cannot be said for same sex marriage.  Why?  Because the Constitution says nothing about marriage.  Since marriage was universally understood to refer to one man and one woman, no one worried about defining it.  This same lack of definition was why, prior to the 14^th Amendment, states were allowed to enslave black people.  Thus, an amendment to the Constitution to define marriage would not actually contradict anything currently existing in the Constitution.  Any contradiction would actually be a matter of interpretation.

If I say that denying gay people the right to marry denies them of their constitutional rights, someone is well within the bounds of good argument to ask what rights?  If I argue that such a denial disallows them from engaging in the “pursuit of happiness” which the Declaration of Independence maintains is a right of every human, a serial killer could argue that his pursuit of happiness is also denied because he is not allowed to murder people. 

Suppose I argue that I have the right to bear arms.  I am absolutely correct.  But I am legally blind.  Does that mean I have the right to bear arms?  Absolutely it does.  And this was upheld legally thanks to a Constitutional challenge mounted by a blind Californian some years ago.  The right to bear arms is a clear constitutional right granted to every American within her borders.  Courts have subsequently repeatedly upheld the right of blind people to own guns  In this case, the Constitution does say something about bearing arms.  I may not have the right to own my own Stinger Missile, though I’m sure this can be debated, but I do have the right to bear arms despite my blindness.

But as I said, the Constitution says nothing whatsoever about marriage and polygamy is still forbidden in the United States showing clearly that the law understands marriage to be between one man, and one woman.

So should Kim Davis have been jailed?  Absolutely.  She violated the law of the land which, in the absence of a clear and direct Constitutional mandate, the Supreme Court has the right to adjudicate.  But if conservative Christians wish to uphold their liberty, they must be given that right and the way to do this is by amending the US Constitution.  The people of California were denied this right and that was wrong.  I think the only way to resolve this issue once and for all is to ask the people how they want to define marriage.

Since marriage is no longer considered to be exclusively between one man and one woman, polygamy should be allowed legally in my opinion.  If we have two consenting women who agree to marry the same man, why shouldn’t they?  Polygamy laws make no sense if we are going to redefine marriage.  Polygamy laws would send women back to the Dark Ages for reasons which should be pretty obvious to everyone.  I would oppose polygamy.  But legally, polygamy laws are nonsensical now that gay marriage is allowed.  And the legal challenge is bound to arise if it hasn’t already.

For now, however, same sex marriage allowed across the nation is the law of the land and those who choose to disobey must be willing to suffer the consequences of their disobedience.  If Davis feels she is unable to carry out her duties as the clerk issuing marriage licenses, she should resign.  But I think the issue is far to divisive to allow an interpretation  of what the Constitution means to dictate such things, and especially not an interpretation of just nine people who did not come to a unanimous conclusion.  This sort of thing belongs to the people.  If we could come up with an amendment to abolish slavery, we can come up with one to say yea or nay regarding same sex marriage and we can also settle, once and for all, whether polygamy should be allowed.

There is a situation in Australia where I currently live that illustrates the consequences of same sex marriage.  In Victoria the government is about to mandate that same sex couples should be given equal consideration to heterosexual couples when it comes to adoption.  Faith based organizations which help find homes for children are challenging this legislation on the grounds that this would cause them to violate their beliefs in this matter.  Many faith based organizations would, if given the freedom, refuse to adopt children out to same sex couples on religious grounds.  So far, the Victorian government remains adamant that same sex couples must be given equal opportunity.

I personally do not oppose two consenting adults having a sexual relationship regardless of gender.  But I do have serious trepidation around whether children should be forced to have same sex parents.  This is all about the rights of the child.  Same sex couples maintain they can give their adopted children a loving environment and I believe they have every intention to do just that.  They may even succeed.  But do we have the right to say to a child “you don’t get to have a mother” or “you don’t get to have a father?”  I also believe, however, that given a choice between no parents, and gay parents, gay parents are the much more preferable option.

But if this legislation passes in Victoria, should faith based organizations be forced to obey the laws of the land?  I say no.  Why?  Faith based organizations volunteer their services.  They may receive government funding to help, but they undertake such service out of the goodness of their heart.  It’s a win-win situation for both government and children, not to mention adopted parents.  Victoria might suspend funding for noncompliance, but I do not believe they have the power to compel obedience because the service is voluntary.  What this will do is close down faith based agencies which engage in this service and make adoption for Victorian kids much more difficult than it already is, and it is already difficult enough.

And do we know how children cope with same sex parents?  Are there any psychological effects?  I don’t think we know yet.  I think it is too early to tell.  So far the evidence I have seen seems to indicate children do just fine with gay parents, but I am no expert and there is an insufficient amount of evidence.  Gay people should divorce at about the same rate heterosexual couples do.  Evidence actually suggests divorce rates are higher but again, it is probably too early to say for sure.  Who gets custody of the children or more accurately, who gets primary custody?  So far the law understands that some sort of primary custody is required, but what happens with same sex couples?  For heterosexual couples, primary custody almost always goes to the mother.  Fair or unfair, this is clearly what happens.  This also means the father is expected to pay child support.  How will all this work with same sex couples?  And then, of course, there is the adoption issue.  We dictate to a child that it cannot have a father or a mother.  Is this fair?

I personally think that if possible, a child should have a mommy and a daddy.  There are a lot of unanswered questions and children’s rights to consider. The people have the right to decide these issues and to take their time doing it.  What we have now is a bunch of legislation and dictates forced on people who may not want them.  What kind of a democracy is that?

The people of California – one of the most if not the most liberal state in the United States – voted against same sex marriage.  And we were told we had no right to do that.  Democracy died in California that day and it is dying all over America and here in Australia.  Since the constitutions of both countries say nothing about marriage, why should these sorts of questions be left up to the interpretation of a few. 

It probably stuns many to learn that in the 19^th century, we had to define what a person was.  Today it seems so obvious to everyone.  Back then, there was no knowledge of DNA, no understanding of genetics among the masses, and a lot of misguided beliefs based on an inadequate understanding of Darwin’s theories.  These culminated in the eugenics inspired mass murder of millions performed by the Nazis in Germany.  That only stopped in 1945.  What seems obvious to us today was not obvious to our ancestors.  And what was obvious to our ancestors, such as the definition of marriage, is no longer obvious to us.  If we have to define the terms we use then so be it.  If we could take the time to define what a person was (and Australia had the same issue though without actual slavery), we can surely take the time to define what marriage is.  This should be decided by the many.