Gay Marriage: The Vermont Veto Override, the Iowa Supreme Court Decision, Governor Patterson’s Legislation

Imagine curling up in bed with your spouse one evening after a particularly long week at work – both of you feeling that sense of comfort in each other’s arms in the privacy of your own home – that feeling of being able to completely relax and leave the outside world behind – that feeling of being safe at home with the one you love.

You talk a little… Vent a little… Maybe watch some television together. You briefly consider making love but you’re both just too tired you settle for a few tender kisses and then drift off in each other’s arms.

Until you are awakened by the sound of the police invading your home.

The police had been hoping to find you and your spouse engaged in a sexual act so they could up the charges against you – but they settle for just charging you and your spouse with… being married!

They seize your marriage certificate as evidence against you and bring you before a judge – who sentences both of you to one year in prison!

No, this wasn’t a fictional case.

No, this wasn’t a gay couple.

No, this didn’t happen under the Taliban.

This is what really happened to Richard and Mildred Loving right here in the United States of America.

"Almighty God created the races white, black, yellow, malay and
red, and he placed them on separate continents. And but for the
interference with his arrangement there would be no cause for
such marriages. The fact that he separated the races shows that
he did not intend for the races to mix."

This was the reasoning behind Judge Leon Bazile’s decision sentencing Richard and Mildred Loving to a year in prison for being a married couple in the state of Virginia. It didn’t even matter that they were legally married in another state. The mere presence of a married interracial couple within Virginia’s borders made them criminals.

And no, this case didn’t happen centuries ago.

Miscegenation was considered a felony in many states until such laws were declared unconstitutional in 1967 when the U.S. Supreme Court finally overturned the ruling in the case described above (Loving v. Virginia).

For those who oppose gay marriage (and I certainly understand that many feel uncomfortable with the concept as many did – and still do – with the concept of interracial marriage), consider how a lack of protection for the institution of marriage gave the government the power to arrest these two people – two heterosexual people with a valid marriage certificate. The government of Virginia convicted this couple on felony charges simply because they disagreed with the choice of spouse these two people – a man and a woman – made.

In the media, the issue has been presented as whether or not we should “allow” same-sex marriages. I think this misses the point.

The issue isn’t really about whether we should “allow” interracial marriage or gay marriage or interfaith marriage or any other kind of marriage between consenting adults.

The issue is whether government should have the power to regulate such personal decisions at all.

Whether you agree or disagree with the idea of gay marriage, you should fight tooth and nail against any governmental efforts to gain power – particularly over this sacred institution. You should fight against government so intrusive and so powerful that it can tell a person who they should choose to love and spend the rest of their lives with.

As the Supreme Court stated in Loving v. Virginia:

"Marriage is one of the "basic civil rights of man," fundamental
to our very existence and survival… To deny this fundamental
freedom on so unsupportable a basis as the racial classifications
embodied in these statutes, classifications so directly subversive
of the principle of equality at the heart of the Fourteenth
Amendment, is surely to deprive all the State's citizens of
liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

Think about who you chose as your husband or wife. If given the power, what arbitrary reason could the government use to discount or even criminalize your marriage? We’ve already seen it discriminate based on skin color. What about faith? My wife and I decided to marry despite our different faiths – could the government choose not to recognize my choice or my wife’s choice? What about age? Nationality? Disability? Political affiliation? Should we ban Republicans from marrying one another? Or maybe just Democrats.

Perhaps you believe that gay marriage is different – that it will somehow destroy the institution of marriage or society itself. This would be a legitimate reason for government to regulate same sex marriage or any other type of marriage that would harm society.

But is there a real and tangible harm here?

Yes, states have a real interest in regulating marriage with respect to a minimum age, for example. Government has an interest in protecting minors from exploitation by adults – and it is commonly accepted that minors are not capable of giving legal consent.

A state’s interest in regulating polygamous relationships is a much closer call. Although all the parties may be consenting adults, there is the potential for financial disaster for the many children that typically result from such relationships. It is also alleged that these types of marriages can result in neglected and/or abused children. However, these types of harm are present in traditional marriages as well – and it is worth noting the recent case in Texas resulted in the State causing harm to the children involved – not the polygamists.

Some would argue that it is government’s responsibility to enforce the social code – that it doesn’t need to demonstrate harm other than a violation of “traditional American values.” They see nothing wrong with regulation of marriage, requiring school prayer, and public religious displays. They see nothing wrong with imposing one particular brand of morality on all.

But for those who would like a closer relationship between government and religion, consider that separation of church and state is a double edged sward. Not only does it protect the individual from the state – it also protects religious institutions from the state.

When government gets its hooks into something – whether it’s the institution of marriage, a religious institution, or a bank, it gets power over that institution. The TARP legislation is a good example. The banks originally lobbied for it – now that they realize government involvement means government control and are all racing to give the money back.

So is it more dangerous for government to enforce a particular social code – or is it more dangerous to recognize that morality is somewhat relative? I would argue that the former is far more of a danger.

These same rationales were, after all, also behind miscegenation laws: government should enforce social traditions, interracial marriages would harm kids, and if people of different races were allowed to get married it would destroy society.

And when interracial marriage became a civil right, society certainly changed. I would argue that it changed for the better – but that’s a matter of opinion.

Some of you at this point will just throw up your hands and declare the above argument a bunch of liberal nonsense. But consider that it is actually a very conservative argument. It is an argument that government should be both small and non-intrusive. It is an argument that recognizes a core principle that our Founding Fathers understood when they created a divided government – that people who seek political office do so because they want power. And a government that gains power does so at the expense of its citizens.

As a legal matter, the interesting thing about the Vermont veto override is that it pretty much guarantees that gay marriage will be viewed as a civil right. And it pretty much guarantees that same sex marriages will have to be accepted in all 50 states. It’s just a matter of time.

Unlike Iowa and some other states where courts have recognized the civil rights of gay couples, this was a legislative act. This was not some activist, unelected judge who some higher judge could overrule – this was the will of the people in the strongest of terms – a veto override. The Vermont law does not require residency for a marriage license, so anyone can marry there – and then move back to their home state where their marriage will have to be recognized courtesy of the Full Faith and Credit Clause of the U.S. Constitution.

A quick note: I hope to have the video portion of Brutally Honest Politics up and running shortly. I am excited to add what will amount to my own mini-television show (with professional production values – trust me) to this site (it will also be available on Youtube). Although editorial-type essays are powerful and I intend to continue writing them, I think presenting political views in this format will be far more exciting and will potentially reach a much larger audience.

Look for lots more content starting next week AND PLEASE FORWARD BRUTALLY HONEST POLITICS TO YOUR FRIENDS!