SCOTUS - Right and Wrong on Gay Marriage

The Supreme Court has done it again. They got it right; but for the wrong reason; in the decision this morning to protect Gay Marriage. That they used the 14^th Amendment to do so, rather than striking at the root of the problem, is troubling to me, if no one else. Let me attempt to clearly state why.

The whole shebang centered on the ill-conceived DOMA act which was first introduced by Bill Clinton in 1996. It was a midterm election effort to retain those voters who were as yet uncomfortable with Gay Marriage. But in crafting the thing they put a major chip in the Constitution.

Article IV, Section 1: (1789)

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

This Article makes it possible to be married in one state and move to another without getting married again. It covers everything from car registrations to interstate commerce. It’s what keeps the local sheriff from knocking on a motel door demanding to see a local wedding license. It’s the very essence of the interaction between the states on so many levels that I have always wondered why they essentially broke it with the 2^nd section of DOMA; the third section of which was later declared unconstitutional by the Supreme Court. But Section 2 was left intact, and as far as I can tell, in spite of today’s ruling, remains so.

Here is the entire act with the troublesome 2^nd Section in bold italics.

DOMA (1996)

Section 1. Short title. This Act may be cited as the "Defense of Marriage Act".

Section 2. Powers reserved to the states. No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Section 3. Definition of marriage. In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

It is hard for me to understand just why the Court simply did not address the 2^nd Section when striking down DOMA. That would have prevented the individual states from going through the unnecessary judicial proceedings of the last decade, with each state fighting for or against Gay Marriage on the basis of States Rights; which is clearly allowed by Section 2 of DOMA. In striking down DOMA’s 3^rd Section only and leaving Section 2 intact they created the whole problem they resolved this morning by using the 14^th Amendment to reach their decision.

But, still troubling is the fact that the 2^nd Section of DOMA is left intact; giving rise to the question just why it has not been struck down by the Court; even with today’s new ruling. Leaving it intact only creates a precedent in law which still undermines Article 4 Section 1 of the Constitution.

If I am probably the only one troubled by this, I can only recall the time when I was working on an appeal for some charge against me while in the Navy aboard the USS Neosho. The Captain found me poring over the Ship’s Organization and Regulation Manual and refused to let me continue with my research. He would not allow me to use the book. I asked him if it would not be more convenient for the Navy to take only sailors who couldn’t read. He never answered but there are times when it does seem like a curse to be able to do so. 

Clinton, DOMA and Article IV - WTF?

Am I the only one who understands this, or am I just ill-informed? First off, if you don’t know the difference between an Amendment and an Article in the US Constitution, then this post is not for you. If you would like to know, then I’ll tell you.

An Amendment to the Constitution is something which has been added; or changed from the original Articles; which delineate what the government’s functions are, and how they are to go about their jobs. Amendments are; beginning with the first ten in the Bill of Rights; outline the areas of  our lives in which the government is not allowed to intrude. And sometimes; as with the 27th Amendment; they are merely additions or corrections to existing Articles. 

Secondly; Civil Rights Issues; of which Same Sex Marriage is but one; are not negotiable, and therefore not subject to populist elections. It is essential that you understand these two things. Okay, got that straight? Now, some background.

Bill Clinton is the ex-President who is seen as the godfather to the GLBT movement. I hope I have the initials in the proper order so as not to offend anyone. But Bill Clinton; in addition to giving us the ill-advised “Don’t Ask Don’t Tell” policy; also left us with a lasting legacy; and conundrum; in the form of the Defense of Marriage Act.

DOMA; it’s easier to use the acronym; basically stated that marriage in the United States consists of one man and one woman. That alone is confusing to me in that Bill Clinton is embraced by the GLBT community as a champion of their quest for equal rights. But what really puzzles me even more is the clause within DOMA which basically guts Article 4; the Full Faith and Credit Clause; which states that “Full faith and Credit shall be given in each state to the Public Acts, records and Judicial proceedings of every other state….” In essence, this clause prevents the individual states from not honoring your driver’s license, automobile registration, marriage license etc. when traveling through their districts. This was a good thing.

Can you imagine the confusion resulting in having to pay a fee at each state border as you travel across the country? Or having to get a temporary marriage permit while on vacation? Full Faith and Credit is the antithesis of State’s Rights, which brings me to the crux of this post.

Bill Clinton planted the seeds for all the confusion going on in the courts across the country right now in regards to Same Sex Marriage. That’s right; the godfather of alternative lifestyles is at the root of the problem being faced by GLBT people all across the land as they try to navigate the labyrinth of state laws which permit them to marry in some states, while making those unions illegal in others.

Further complicating the matter is that the Supreme Court struck down only that portion of DOMA which restricted Same Sex Marriage. It did not, however, strike down the clause which allowed the individual states to by-pass Article 4 of the Constitution. This is why you have lawsuit after lawsuit concerning Same Sex Marriage in one state after another. If the  entire DOMA had been struck down this would not be an issue.

President Bush postured to repeal the entire DOMA Act in order to gain conservative votes. Had he known what a roadblock DOMA could be for Same Sex Marriage he would have felt differently. This brings us to President Obama; who has stated in the past that his position on this issue was “evolving.” What is his administration’s position on this issue now?

Well, according to Eric Holder and the Justice Department, the portion of DOMA which remains intact regarding Full Faith and Credit; which would allow a Same Sex Marriage in Vermont to not be honored in Kansas; the government; for now; will not pursue a change. What the hell does that mean?

Full Faith and Credit has served this country well; both socially and commercially; for well over 200 years. The patchwork quilt created by Bill Clinton; and unchanged by his predecessors; is an ill omen of things to come. As a legal precedent it threatens us in more ways than just Same Sex Marriage. With Conservatives calling for a roll back to an era before the Civil Rights Act of 1964 it threatens us in more ways than you can imagine.

And, as these elections about Same Sex Marriage roll around to your state, it is important to remember that Civil Rights are not subject to elections. They are non-negotiable.