Another Milestone on the Path to Equality

BY Dennis Riley

On June 26th the U.S. Supreme Court held that the 14th amendment guarantees of due process and equal protection of the laws meant that no state could ban marriages between members of the same sex, just as it had held almost 50 years earlier that no state could ban marriages between individuals of different races. Reaction was fast from those who supported the decision, and fast and furious from those who opposed it.

Some of those initial negative reactions seem to be pretty much words full of “sound and fury, signifying nothing.” As long as the passage of a Constitutional amendment requires a 2/3 vote of both houses of Congress and ratification by 3/5 of the states, Scott Walker’s call for an amendment to restore the right of the states to define marriage as the union of one man and one woman is clearly doomed. Louisiana Governor Bobby Jindahl’s prediction of “an all-out assault on the religious freedom rights of Christians who disagree,” seems cut out of the same cloth as Bill O’Reilly’s assertion that the U.S. is waging a “war on Christmas.” In fact, most of the political bluster of the summer has been aimed at protecting, not assaulting, the rights of Christians bothered by gay marriage.

But there have been furious responses that require very serious thought. Two spring readily to mind.

First, what about the bakers, the florists, even the free-lance limo drivers or musicians who believe their artistry would somehow be offensive to their God if put in the service of a gay wedding. This would have to be particularly painful for those who believe their artistry to be a gift from their God. Talk about ungrateful. I sympathize with them. Honestly. But I sympathize far more with the gay men and women simply trying to assert a right they have finally been granted. Besides, the bakers, florists, and musicians are also business people and once you go into business you are obligated by a combination of law and human decency to treat customers equally. But it is precisely here where this question gets a little complicated. The U.S. Supreme Court can tell county clerks or family court commissioners that they have to issue a marriage license to a gay couple, but can’t tell a baker that he or she must provide that couple a wedding cake. The 14th amendment due process and equal protection clauses do not apply to private citizens and their actions. Congress, a state legislature, and probably even a city council can tell a baker he or she must provide that cake, but the Supreme Court cannot and has not. The mandate for private businesses to stop discriminating on the basis of race, gender, etc., remember, is embedded in the Civil Rights Act of 1964. No such protection resides in that statute for victims of discrimination based on sexual orientation. Can you imagine this Congress doing that? How about the state legislature of Texas, or Alabama, or Kentucky?

Much as opponents of gay marriage love to talk about the poor Christian florists and bakers of the world, the much bigger question, of course, revolves around public officials. No Supreme Court decision is self-executing. People, especially people with “executive power” in state and local governments have to implement many of these decisions. That made the words of Greg Abbot and Ken Paxton – Texas Governor and Attorney General respectively – more than a little chilling. Abbot said that, “No Texan is required to act contrary to his or her religious beliefs regarding marriage.” Paxton followed less than 24 hours later by assuring county clerks throughout the state that their religious beliefs could in fact trump the Supreme Court’s decision and that he, his office, and an army of Texas attorneys would be behind them in the decision to refuse to issue marriage licenses to gay couples. Doesn’t sound so very different than the words of so many southern politicians responding to Brown v. Board of Education back in 1954, does it? Makes you think that Mark Twain was right, that even if history doesn’t repeat itself, it definitely rhymes.

All the rhetoric from public officials in a number of states aside, the 14th amendment requires that all states must provide equal protection of the laws – along with due process protections – to all of its citizens and the U.S. Supreme Court has declared that issuing marriage licenses to same sex couples is a duty of state and local authorities. Sooner or later that was going to mean a conflict between the religious beliefs of one of those state and local authorities and the ruling of the court. After a few skirmishes in Texas and Alabama not long after the ruling, the nation was introduced to Kim Davis, clerk of Rowan County, Kentucky and forced to think through what we ought to do when someone in a position of public authority told us that his or her faith prevented the individual from complying with the Supreme Court’s decision and issuing a marriage license to a same sex couple. So far we know what the U.S. District Court for Eastern Kentucky has done. Judge David Bunning held her in contempt and ordered her jailed. We know what five of her six deputies – the sixth was Ms. Davis’s son – have done. They have issued the licenses.

Now what? It will happen again. Was this the right answer? I think so, of course. Religion is vital, it can be beautiful, and it is intensely personal. But it cannot be the basis for rejecting public policy if your job is to implement that policy. You have to resign, or be fired, or be impeached. The Constitution ought not to ride roughshod over religious people and their beliefs. But in the name of religious rights it cannot run roughshod over the rights of others.

See you in court. That’s where we balance conflicting rights.

Enough out of me.

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