Freethought San Marcos: A column
by LAMAR W. HANKINS
It was gratifying to read of Sen. Lisa Murkowski, R-Alaska, declaring that she has changed her mind about her opposition to gay marriage. Her change of heart is based on the right to privacy, support for encouraging committed families, and recognition that denying first-class citizenship to people because of their choice of life partners also denies such people the liberty promised by the constitution.
Murkowski did not explain her reasons exactly as I have explained them above, but my comments fairly interpret what she said. She does not believe that religions or religious beliefs should control our civil rights. But she does not suggest that any church or religious group be required to recognize same-sex marriages:
“As a Catholic, I see marriage as a valued sacrament that exists exclusively between a man and a woman. Other faiths and belief systems feel differently about this issue – and they have every right to. Churches must be allowed to define marriage and conduct ceremonies according to their rules, but the government should not tell people who they have a right to marry through a civil ceremony.”
Murkowski was moved by the experience of a same-sex couple in Alaska who adopted a family of four children so that they could stay together. Murkowski recognized that the two women are denied rights that all heterosexual married couples enjoy and found such a “second-class existence” intolerable when viewed from the perspective of the Republican and Christian values she espouses.
This view seems imminently reasonable, so why have only two other Republican United States senators agreed with her – Sen. Rob Portman (Ohio) and Sen. Mark Kirk (Illinois), who announced earlier this year that they too support same-sex marriage in the civil context? That leaves 43 Republicans in the US Senate who oppose the freedom to marry the adult of one’s choice. (According to an ABC News report, nearly 50 Democrats in the senate support or do not oppose same-sex marriage.)
There is no fiercer Republican opponent of same-sex marriage than Texas’s Sen. Ted Cruz, who many believe is the future of the Republican Party. Cruz claims to be what I would call the “liberty senator,” except that the only liberty he consistently supports is liberty that his Tea Party constituents embrace. Cruz tries to finesse his position on same sex marriage by arguing that the matter is, under the Constitution, left to the states to decide:
“The Constitution leaves it to the states to decide upon marriage and I hope the Supreme Court respects centuries of tradition and doesn’t step into the process of setting aside state laws that make the definition of marriage.”
But Cruz is disguising his abhorrence of gays with his paean to states’ rights. In his view, the personal freedom to decide whom to marry is not a constitutional guarantee for all, but a privilege to be doled out by the states to those fortunate enough to live in one of the eleven states that permit same sex marriage.
Cruz seems not to remember that the Supreme Court’s decision in Loving v. Virginia, which overturned that state’s law against inter-racial marriage, was based on the US Constitution. In its ruling, the court found that Virginia’s anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
If Cruz’s limited liberty ideas had been in effect in 1965, the Supreme Court might not have allowed women to have access to birth control, which had been denied by the state of Connecticut. The court ruled that the right to privacy and due process entitled women to use birth control if they choose to do so. States cannot deny access to birth control under our Constitution.
For Cruz, states’ rights seem to trump the Constitution, at least whenever his political and religious views are affected. Fortunately for the rest of us, the Supreme Court has usually recognized that the rights and liberties guaranteed by the Constitution protect us all from state legislators and voters who would deny to some those rights and liberties we should all treasure, and from which we should all benefit.
Cruz’s homophobia is so pronounced that he has criticized other politicians for being too accepting of gays. Former Dallas mayor Republican Tom Leppert twice marched in Dallas’ gay pride parade, actions that Cruz finds offensive: “When a mayor of a city chooses twice to march in a parade celebrating gay pride that’s a statement and it’s not a statement I agree with.”
At the federal level, Cruz has defended marriage between one man and one woman as the fundamental building block of society. But the difference between same-sex marriage and heterosexual marriage is not obvious. In both cases, the couples can nurture children, work, engage in religious preferences together or separately, own property together, and live together in every other way. But because same-sex marriage partners are denied the automatic extension of the privileges of marriage, such as property rights, medical decision-making, inheritance, and the right to make decisions on the death of the other partner, same-sex partners are far from equal to their heterosexual counterparts.
A couple married in Vermont who move to Texas, for example, will not enjoy the “full faith and credit” of Vermont’s law permitting same-sex marriage if that couple seeks to divorce – that is, the couple cannot divorce in Texas, their then legal residence. This is a situation Cruz is proud to have helped create. His campaign website crows, “When a Beaumont state court granted a divorce to two homosexual men who had gotten a civil union in Vermont, Cruz, under the leadership of Attorney General Greg Abbott, intervened in defense of the marriage laws of the State of Texas, which successfully led to the court judgment being vacated.”
It is counter-productive to a civil society to allow such chaos to prevail. The couple will have to re-establish residence in Vermont in order to have a court supervise the dissolution of their marriage and division of property. If children were involved, the consequences would be even more troubling – the children would be held hostage to the religious beliefs of Ted Cruz, as well as his narrow and limited definition of liberty.
Cruz ignores the Full Faith and Credit clause (Article IV, Section 1) of the U.S. Constitution. Understood in plain English, this clause means that the various states must recognize the legislative acts, public records, and judicial decisions of the other states in our union. With the Full Faith and Credit Clause, the Constitution drafters wanted to do two things: unify this country and preserve the autonomy of the states.
If the Supreme Court applied this provision to same-sex marriages created in one state when the parties have moved to another state, it would not require any state to allow same-sex marriage, but it would require every state to behave toward all married couples residing in their state in a legally equal fashion. If a quickie Las Vegas opposite-sex marriage can be enforced in Texas, the sanctity of marriage is not harmed by enforcing in Texas a same-sex marriage entered in Vermont.
Such an outcome may be a part of the “gay rights agenda” Ted Cruz loves to oppose. I don’t know because I don’t know what the “gay rights agenda” is. If by gay rights, one means that people who are gay should be treated without discrimination under our laws, then I favor such an “agenda.” This is not a grant of special rights to gay people, but merely an effort to treat gays with the same respect our laws provide to all who suffer discrimination because of their status. Opposing discrimination against gays for being gay fulfills the promise of liberty, something Cruz claims to champion.
But as we have learned over the past two years or so, Cruz doesn’t like liberty as much as he likes talking about liberty. Cruz’s liberty reminds me of Anatole France’s idea of equality under the law, which “forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.” Cruz is all for liberty that allows gays as well as straights to marry someone of the opposite sex. He thinks that makes us all equal.
© Lamar W. Hankins, Freethought San Marcos
LAMAR W. HANKINS is a former San Marcos city attorney.Email | Print