ROGBLOG
A Gay Marriage Amendment—Is it Good for the Constitution? President Bush’s call for an amendment to the Constitution to protect the institution of marriage raises several issues that can be grouped into two categories. First, is this issue appropriate for a constitutional amendment? Second, what position should a religious community take with regard to the government’s definition of marriage?
Before we get sucked into this debate too far, why are we debating this at all; is this truly a critical issue or is it a political distraction? When high-emotion issues like these are raised, they are typically an attempt by the speaker to get supporters to rally around an issue which arouses strong emotions so as to distract them, and their opponents, from the truly important issues of the day. Gay marriage gets big headlines, is the focus of television and radio talk shows. Everything else gets drowned out. Sex, especially gay sex, sells. In 1993 an off-the-cuff remark by a newly elected president about gays in the military (which was hardly on the radar screen even for politically activist gays) became the story for months, overshadowing debates over major policy shifts. The predictable result: a president and staff unable to focus or get the media’s attention on other issues, contributing to a poorly conceived and implemented policy, and a stalled domestic agenda.
Like gays in the military, gay marriage is a distraction. While it impacts many people, its importance pales in comparison to issues that affect nearly everyone in our community: the war on terrorism, proliferation of weapons of mass destruction, radical Islam, the environment, civil liberties, selection of federal judges, tax policy, crumbling infrastructure, underfunded public schools and more. As a community, orthodox Jewish advocates must look beyond distractions and focus on the true fundamental issues that affect us all.
Nonetheless, once placed on the table, we should not seek to avoid it. As a minority community whose rights are protected from the so-called “tyranny of the majority,” Jews must be very sensitive to any attempt to tinker with the constitution for reasons that are not critical to the nation. Is the only choice on this issue deference to judges or amending the Constitution?
Constitutions describe the structure and limitations of government, and they often also confirm fundamental rights of citizens. In contrast, laws passed by legislatures as representatives of the people, can cover nearly every conceivable subject that is not prohibited to them by the constitution that created them. In 230 years, our constitution has been amended 26 times (actually 17 times, since the first ten amendments were passed together). With the exception of prohibition, which was subsequently repealed, each amendment dealt directly with government structure or fundamental rights. Is the issue one of fundamental rights or of privilege? If the former, this would be the first attempt to use the constitution to deny such a right to any person or group. That the U.S. Constitution, which is largely intended to limit government power and protect minority rights, would be used to deny a fundamental right is frightening. Whose rights will be next on the chopping block?
On the other hand, if marriage is merely a social institution, however important, or a privilege granted with discretion by the government, then the constitution is not the place to address the issue. It is best left to the legislature as the representative voice of the people. If the legislature can tackle every other social issue, I do not see why it cannot deal with this one. And if legislatures choose to grant the privilege to gays, doing so does not impinge any fundamental right of those opposed to gay marriage. After all, the President is not opposed to the states granting privileges to same-sex civil unions, all he is seeking to protect is the word “marriage.”
Is the president right to give the people, rather than individual judges, the power to decide this issue? If so, than it should left to the states, which have always had jurisdiction over marital status. Even the issue of polygamy in Utah was ultimately settled by action of the state legislature. Historically, court decisions have pushed the envelope of how society can and should treat minorities. They are doing so again, and it is ultimately up to people to respond accordingly.
Of course, all this talk of procedure begs the question of what position should a religious community take with regard to the government’s definition of marriage? Must it be the same or compatible with the dictates of religious law? How should the orthodox community approach the issue of civil rights for persons who engage in conduct that is antithetical to Torah values? Should civil rights for gays and lesbians be explicitly protected? How orthodoxy approaches gay rights is important as a model for our relation as a minority culture in America to society as a whole, but that is a different issue. Misusing the constitutional process for political gain is wrong and the Jewish community should focus on the issues that are truly important in this election year.
Like gays in the military, gay marriage is a distraction. While it impacts many people, its importance pales in comparison to issues that affect nearly everyone in our community: the war on terrorism, proliferation of weapons of mass destruction, radical Islam, the environment, civil liberties, selection of federal judges, tax policy, crumbling infrastructure, underfunded public schools and more. As a community, orthodox Jewish advocates must look beyond distractions and focus on the true fundamental issues that affect us all.
Nonetheless, once placed on the table, we should not seek to avoid it. As a minority community whose rights are protected from the so-called “tyranny of the majority,” Jews must be very sensitive to any attempt to tinker with the constitution for reasons that are not critical to the nation. Is the only choice on this issue deference to judges or amending the Constitution?
Constitutions describe the structure and limitations of government, and they often also confirm fundamental rights of citizens. In contrast, laws passed by legislatures as representatives of the people, can cover nearly every conceivable subject that is not prohibited to them by the constitution that created them. In 230 years, our constitution has been amended 26 times (actually 17 times, since the first ten amendments were passed together). With the exception of prohibition, which was subsequently repealed, each amendment dealt directly with government structure or fundamental rights. Is the issue one of fundamental rights or of privilege? If the former, this would be the first attempt to use the constitution to deny such a right to any person or group. That the U.S. Constitution, which is largely intended to limit government power and protect minority rights, would be used to deny a fundamental right is frightening. Whose rights will be next on the chopping block?
On the other hand, if marriage is merely a social institution, however important, or a privilege granted with discretion by the government, then the constitution is not the place to address the issue. It is best left to the legislature as the representative voice of the people. If the legislature can tackle every other social issue, I do not see why it cannot deal with this one. And if legislatures choose to grant the privilege to gays, doing so does not impinge any fundamental right of those opposed to gay marriage. After all, the President is not opposed to the states granting privileges to same-sex civil unions, all he is seeking to protect is the word “marriage.”
Is the president right to give the people, rather than individual judges, the power to decide this issue? If so, than it should left to the states, which have always had jurisdiction over marital status. Even the issue of polygamy in Utah was ultimately settled by action of the state legislature. Historically, court decisions have pushed the envelope of how society can and should treat minorities. They are doing so again, and it is ultimately up to people to respond accordingly.
Of course, all this talk of procedure begs the question of what position should a religious community take with regard to the government’s definition of marriage? Must it be the same or compatible with the dictates of religious law? How should the orthodox community approach the issue of civil rights for persons who engage in conduct that is antithetical to Torah values? Should civil rights for gays and lesbians be explicitly protected? How orthodoxy approaches gay rights is important as a model for our relation as a minority culture in America to society as a whole, but that is a different issue. Misusing the constitutional process for political gain is wrong and the Jewish community should focus on the issues that are truly important in this election year.
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