An Uncivil Union

There's no doubt in my mind that the opposition to the recently defeated civil unions bill was based in one group's need to impose its religious beliefs on the rest of us.

There is no other explanation for the fervor of the testimony against the bill given by the largely religious groups. There is no other explanation for the obsession with protecting their tradition and their definition of a single word. And there is no other explanation for what I believe is the clear violation of the oath each member of the legislature took to support the Constitution of the United States.

These opponents can't stand the idea that somebody else is getting married in a way different than what their religion supports, and civil unions are just too darn close for their comfort.


[more]

Free Speech Means Just That

A couple of recent incidents in Boulder illustrate just how fragile free speech guarantees are.

Seth Brigham, local activist, was first interrupted and then arrested when it appeared he was about to criticize a couple of council members during the public participation portion of a city council meeting. Fortunately, the charges were dropped, and council apologized. But there are still some on council who think the actions against Seth were legitimate. Council needs to immediately change the rules so that complaining about a particular council member during public participation is not against public policy.

Second, the local Catholic school told the lesbian parents of two students that they would not be allowed to re-enroll the children because of their homosexual relationship. Many in the community have taken the church to task for this decision.

Some have accused the complainers of being "intolerant". (Never mind that these people are themselves being intolerant of the complainers.) Since when has the right to free speech been limited to things that don't hurt someone's feelings?

Strange Bedfellows in San Francisco

If you think you understand the gay marriage issue, what is happening in a federal court in California may surprise you. Under the limelight of that court, many are retreating or changing their stories.

Opponents of California`s Proposition 8, the amendment to the state constitution that bans gay marriage, have brought suit in U.S. District Court on the grounds that it violates the rights of gays under the U.S. Constitution.

Judge Vaughn Walker attempted to put the trial on YouTube, which would have been a first. However, the U.S. Supreme Court put a swift end to that idea.

[more]

Changing Attitudes -- Time is on our Side

Researcher Fran Simon of Denver is a lesbian woman, married in every sense of the word except legally.

Working for the Gay & Lesbian Alliance Against Defamation, Simon authored a Harris Interactive study last November that explored attitudes of Colorado residents toward LGBT (lesbian, gay, bisexual, and transgender) issues, including gay marriage.
[more]

The People v. Free Exercise of Religion

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." -- Amendment I to the U.S. Constitution

"The Federal Government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states." -- Defense of Marriage Act

Congress is prohibited from restricting the free exercise of religion, yet an act of Congress invalidates Fran and Anna Simon's Jewish wedding -- sanctified by Rabbi Jamie Korngold. [more]

This is part 2 in a 3-part series. Read part 1.

How We Change Hearts and Minds

When Rabbi Jamie Korngold married Fran and Anna Simon in 2005, she made sure all present understood that the marriage had no legal standing.

According to Anna, "That was a surprise to many people." But, according to Fran, the wedding "really affirmed our relationship in their eyes, particularly the people closest to us."[more]

This is part 1 in a 3 part series.

Photo By: Peggy Dyer, www.peggydyer.com

Have You been Propositioned?

Fourteen simple words:

Only marriage between a man and a woman is valid or recognized in California.

And with those words, and the vote of 52.2% of the voters in California, the rights of roughly 120,000 people to wed in that state (estimated for three years) were taken away.

But shouldn't the wishes of the majority be respected? The voters in California (along with Colorado and 28 other states) have spoken. Well consider these very first words from the Bill of Rights in the U.S. Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

As well as 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.

Clearly the U.S. Constitution has the authority to overrule any state's individual constitution and statutory code. Clearly the freedom from establishment of religion and the right to free exercise qualify as "privileges" and "immunities" under the Fourteenth Amendment, meaning that states cannot abridge these rights. And clearly, equal protection of the laws means that one class of people can't be subject to one set of laws while another group is subject to another.

Here's an analogy: The majority of the citizens of the State of Utah are members of the Church of Jesus Christ of Latter-Day Saints. Mormons have a number of beliefs and practices that are not necessarily adhered to by the majority of other members of society. For example, it is against Mormon law to have premarital sex, masturbate, view pornography, or have sexual fantasies. They also believe it is wrong to consume coffee, tea, tobacco, and alcohol.

There is nothing wrong with those beliefs. But suppose they were to put them on the ballot in Utah, and because Mormons have a majority in that state they were able get these aspects of their religion passed as state law. Because a majority believe it, it would be illegal to have a sexual fantasy or drink a cup of coffee.

How many people would consider that a violation of the principle of separation of church and state? How many people would be up in arms about their inability to get a cup of Starbucks, or watch just about any network television program?

Now, consider what has happened with gay marriage. Marriage is clearly a profoundly religious issue. A large percentage of weddings are performed by religious officials and/or in religious facilities. It is considered a sacred bond, and many religions speak out loudly on issues related to marriage. To many, gay marriage is an abomination. To others, it is a sacred celebration of love.

Although many weddings and unions are purely civil and secular, they cannot be separated from religion. In fact, ministers have been arrested for performing gay weddings.

That's right, they have been arrested for freely exercising their religion, something that is spelled out clearly as a fundamental right in the Bill of Rights.

When our country was formed, the founding fathers had the idea that there were certain rights that are so basic that they cannot ever be taken away by the government. Not by Congress. Not by majority rule. Not by any individual state.

When gay marriage is allowed, its opponents lose nothing, except for the comfort of knowing that gay weddings are not taking place. But when gay marriage is banned, an entire class of people lose out on the sacred, emotional, financial, and other benefits of this institution. And that just isn't right.

One of these days, this issue will be brought in front of the U.S. Supreme Court as a First and Fourteenth Amendment issue, and I don't see how they could come to any other decision.

Fighting the Establishment

"Congress shall make no law respecting an establishment of religion ..."

What does this mean? Fundamentally, it means that Congress (and, by the Incorporation Doctrine, state and local governments) can't give preferential treatment to the ideas of one religion over another, without a clear secular purpose. This was in direct response by the founders to the naming of the Church of England as the official religion of England and its colonies.

What clearer violation of this principle could there be than laws preventing gay marriage?

Think of it this way. Certain religions consider gay sex (and by extension gay marriage) to be a sin. Other religions do not, and in fact would be performing gay marriages today if they could. (And they do in Massachusetts and California.) Even though it may be the majority opinion that gay marriage is "wrong", that does not eliminate the protection of the First Amendment rights of those whose religious beliefs include sanctifying gay marriage.

And it is not just the establishment clause. The First Amendment also prevents our government from prohibiting free exercise of religion. When ministers are arrested for performing a religious ceremony (gay marriage), there is no doubt that this right has been infringed.

So, is there a secular purpose to banning gay marriage that can be used to overcome this objection?

What about the argument that limiting marriage to a man and a woman is best for children? That is a completely bogus argument. This is about marriage not about child rearing. If this were true, then gay marriage opponents should be working to ban gay adoption and gay artificial insemination. Indeed, many of the same people who are so worried about the children in this instance would not dream of imposing government will on parents to protect them in other instances where the science is more clear -- banning parents from smoking and drinking, banning parents from serving soft drinks to their kids, etc.

But the more fundamental reason that argument is flawed is that it is not equally applied. Many people marry and never have children or ever intend to (including me). Think of the elderly people that remarry long after child-bearing years. That's clearly not in the interest of the children they will never have, but we allow it anyway. But by the anti-gay marriage argument, all of our marriages should have been prevented because they will not result in children, the only valid reason for marriage.

Another argument that is often offered is to protect the word, the sanctity, or the tradition of marriage. Well, these arguments come perilously close to being explicitly religious in nature, which goes against our quest for a secular rationale. For what other word are we willing to sacrifice the rights of an entire class of citizens?

Plus, if you honestly check other cultures and traditions past and present, in this country and elsewhere in the world, you will find many other interpretations of the traditions around marriage, many of which are contrary to the beliefs of the majority here today. For example, in the Native American tradition, gays were accepted, even revered, and would often marry members of their own gender.

What about the concern that gay marriage is a threat to straight marriage? In what way? Nobody would be forced to marry anybody they don't want to, no church would be forced to perform gay marriages, and no existing marriages would be affected in any conceivable way. This argument loses me completely.

It is claimed that gays are trying to force their agenda on everyone else. But who is forcing anything on anybody? It seems to me that the people who are being prevented from marrying are the only ones being imposed upon.

Colorado is one of the states in which gays are explicitly prevented form marrying. It's now in the state constitution. It really makes me wonder how so many people can fail to understand something so clear as the First Amendment.

It's the Babies, Stupid

Alright, alright, I admit it. I don't know what I'm talking about. But that doesn't make my argument any less valid.

It boils down to this: There is a law in Oklahoma that deals with gays, adoption, and couples. For that very reason alone it must be a bad law, and the court in Denver needs to do the right thing and toss it out.

And if you're gay or thinking about becoming gay and if you are adopted or thinking about being adopted, you may want to consider whether Oklahoma is the best place to plan your summer vacation.

Get your facts first, and then you can distort them as much as you please.
- Mark Twain

The Babies Go Marching Two By Two

Ok, so "apparently" I still didn't get it right. I've been told that the state of Oklahoma didn't ban adoption of gay babies and they didn't ban the adoption of same-sex babies.

The Okies have mastered the art of subtle nuance. The actual law is a prohibition on same-sex couple adoption.

I can't believe that anybody would object to adopting two brothers or two sisters. I'm sure I saw it on TV. The real crime is breaking up families. And, what -- if they are a brother and a sister you can adopt them, but just because they happen, purely through genetics, to be the same gender, they can't both be adopted by the same parents.

Well, here's the real crime. Lawmakers in Oklahoma, claiming to be family friendly, are actually breaking up families. How can they sleep at night? If the 10th U.S. Circuit Court doesn't find that this law is unconstitutional, then those judges never had a brother!

Correction: Baby Semantics

Ok, I've been "told" that I was wrong, that Oklahoma has not banned the adoption of gay babies. Rather, they have banned same-sex adoption.

Seems like semantics to me. And in any case, my arguments are still relevant. Why does the government of Oklahoma think they have to right to prevent you from adopting a same-sex baby?

Is there anything all that bad if a man adopts a baby boy or a woman adopts a baby girl? It may not be for everybody, but all of the research shows that children with a same-sex parent grow up just as well-adjusted as children with an opposite-sex parent.

So, my point stands. Same-sex adoption should not be illegal in Oklahoma and same-sex children adopted in other states should not be taken away when the same-sex parent takes the child to Oklahoma.

It's a scandal. It's an outrage.
It's a problem we must solve.
We gotta start a revolution!

All right, boys. Revolve!

What About the Babies?

The 10th U.S. Circuit Court of Appeals in Denver is hearing a case related to gay adoption. It seems that there is/was a law in Oklahoma banning gay adoption, and a federal judge there declared the law unconstitutional.

What I want to know: If the law is upheld, who will take care of all those gay babies in Oklahoma? Don't gay babies have the same rights to have parents that straight babies have?

In fact, the Oklahoma law takes the anti-gay adoption idea to the next step. They don't just ban the adoption of gay babies in that state. If a couple adopts a gay baby in another state and then visits Oklahoma, that adoption will not be recognized, and the gay baby will be taken from the ex-parents. Although it has not been reported, I assume that the baby will then be sent to the official gay orphanage in Oklahoma City.

If you've adopted a gay baby, I urge you to stay out of the Sooner State, or you could be childless sooner than you think!

Remember, there may be a debate over whether homosexuality is a choice that gay babies have made or if they were born that way. But still, can't all agree that they deserve parents too?

Are You 10% of a Man? (Colorado Amendment 43 and Referendum I)

Amendment 43 is deceptively simple -- it adds a clause to the state constitution that says that "only a union of one man and one woman shall be valid or recognized as a marriage in this state." Referendum I is more complex, defining a new category of domestic partnership that grants gay partners many of the same rights and responsibilities as married couples. If you are my regular reader, you probably know how I'm voting on these.

The problems with Amendment 43 are many. First of all, I believe it violates the First Amendment to the U.S. Constitution, which bans the establishment of a state religion, and guarantees the right to freely exercise one's own religion. As I've written before, this line is clearly crossed when a minister is arrested for performing a gay marriage.

Second, Amendment 43 is being added to the state constitution. This document is supposed to contain our state's guiding principles, guaranteeing rights for all of us. Putting it into the constitution only makes it hard to change. This is exactly what the proponents want. As time goes by and people become more accepting of people with different sexual orientations, this abomination cannot easily be undone.

In fact, the exact same limitation that is being proposed here is already a Colorado statute as well as a federal law. So, it is completely redundant and a waste of all of our time, energy, and money.

Look carefully at the words of the proposed amendment. "Only a union of one man and one woman shall be valid or recognized as a marriage in this state." So not only is any other type of union not a marriage, it also isn't valid. I don't know what that means, but I'm suspecting that the authors of the amendment intend it to mean that domestic partnerships are not to be valid. But, for all I know, it also means that trade unions would no longer valid be in Colorado.

It really irritates me when anybody, whether a lawmaker or a petition writer, puts ambiguous words into a measure with the intent that it be clarified in the courts. Not only is that expensive, it also proves that are cowards. They don't have enough confidence in their position to say and argue for exactly what they mean.

Let's look at some of the arguments for Amendment 43. First, there is protecting the definition of marriage. Well, perhaps I should circulate a petition to add the definition of the word "bigot" to the constitution, just so nobody gets confused about who it applies to.

Gay marriage does not threaten any particular marriage, nor does it in any way threaten the institution of marriage as a whole. Nobody is being forced into a gay marriage, nor is any hetero marriage being prevented or questioned.

This amendment is not needed to protect the historical definition of marriage. Marriage on this planet has had many forms over time. The current form -- boy meets girl, they fall in love, get married, have kids, grow old together and die together -- has not been around for that long. Many societies have seen gay marriage, polygamy, marriage of convenience, arranged marriage, harems, concubines, and many other types of "unions". We are now contemplating writing a current "fad" into our constitution.

According to supporters, marriage exists solely to create, nurture, and protect children. Well, they are flat out wrong. Marriages exist for many reasons. When my wife and I got married, we knew we would never have children. When my grandmother remarried in her 60s, there were clearly no children in the plans. I consider this argument to be an insult, and I would not put up with it if it was used to my face.

The amendment is intended to protect marriage against so-called "activist judges". All this means is that proponents of this amendment are afraid that some judge will someday disagree with them. Well I hope so, but disagreeing with religious fundamentalists does not make a judge an activist, it just shows that he is thinking for himself.

Keep your religion out of our constitution, and reject Amendment 43.

On to Referendum I. This proposal would change the Colorado statutes (not the constitution) to create a new legal relationship for same-sex couples, called a domestic partnership. The members of this couple would be afforded most of the 100 or so rights and responsibilities accorded to married couples by Colorado law. It would not, however, provide any of the 1000 or so rights and responsibilities available to married couples by the federal government.

According to my rough calculation, this means that if this law passes the value of gays will be increased to about 10% of straights. Of course, there would still be a long way to go to even get to the 3/5 of a free man valuation that was guaranteed to slaves in the original U.S. Constitution.

The only significant argument against this proposal is that it takes the heat off the real issue, which is bringing gays up to 100% -- allowing committed couples to marry if they wish.

Vote for Referendum I.

On the Slopes, Two Wives Are Better than One

G. Lee Cook of Salt Lake City wants to get married again, but he is happy with his first and current wife. Unfortunately, according to state law in Utah (not to mention everywhere else I know about), that would be illegal.

I have previously argued that gay marriage bans are unconstitutional. Isn't that a slippery slope argument that will just open the flood gates to polygamy and other mixed metaphors? Why, soon we'll be wanting to grant religious freedom to everybody, even people that don't agree with (gasp!) me!

I say, let's open the gates. Let's slide down that slope. It sounds like fun. (Of course, I live in Colorado, and slippery slopes are an entire industry here.)

Cook, his current wife, and his prospective wife have brought their case to the 10th U.S. Circuit Court of Appeals in Denver. Utah Assistant Attorney Nancy Kemp argues that it is ok to ban polygamy, because the ban applies to everybody. As far as I can tell, this amounts to saying that it is ok to prevent people who are members of a religion from practicing that religion as long as you don't let anybody else practice it either. An interesting (but vitally flawed) interpretation of the First Amendment of the U.S. Constitution.

I don't expect the courts to agree with me. But, after all, any judge who doesn't take my point of view is an activist judge and should be thrown from office. Wouldn't be constitutional, but it might be entertaining and ego boosting. And, in fact, that's what it's all about.

Allard Attacks the Constitution

In his defense of my challenge to his proposed anti-gay marriage amendment, Colorado Senator Allard did not respond directly to my fundamental point. I'll try to make that point more clear here.

The position against gay marriage is a religious position. The loudest voices on this issue come from religious leaders like James Dobson, and the politicians trying to suck up to them. At the same time, there are religions in which gay marriage is celebrated. For example, in the Unitarian church several ministers have performed gay marriage (and been arrested for it!). Clearly, when leaders of one religion believes one thing and leaders of another religion believes something else, this is a matter of religious belief.

The First Amendment to the U.S. Constitution says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

The Defense of Marriage Act, which defines marriage as the union between a man and a woman, violates the First Amendment in two ways. First, it violates the establishment clause. It is a law passed by Congress that mandates the beliefs of a certain set of religions (in other words, establishes those beliefs as law). Second, it violates the free exercise clause, by preventing members of those religions that support gay marriage from freely exercising their religions. Arresting a minister for practicing her beliefs is in direct contradiction to this core principle laid down by our founding fathers.

What about putting the gay marriage ban into the constitution? Doesn't that get around this problem?

Well, Senator Allard and all of his peers took an oath, which reads, in part:

I will support and defend the Constitution of the United States ... and ... I will bear true faith and allegiance to the same

This means placing respect for the Constitution at the highest level. Authoring an amendment that violates the principles of the First Amendment seems to me to be the exact opposite of supporting and defending the Constitution. Attempting to change the will of our founding fathers does not seem to exhibit true faith and allegiance, but rather a religious-based attack.

In fact, I would maintain that Allard's amendment, even if it were to pass, would not be Constitutionally valid. Because the introduction of Allard's amendment to the Senate is tantamount to making a law that violates the establishment and free exercise clauses of the First Amendment, that act in and of itself is unconstitutional and should not stand.

Let me be clear here. My position is not anti-religious. It is pro-religious. I encourage Wayne Allard to believe and practice the religion of his choice. The history of mankind is full of examples of people using religion to accomplish great things. However, our country was founded on the principle that no religion can have supremacy, and that the beliefs of the minority need to be protected against the tyranny of the majority.

Senator Allard, get your religion out of my Constitution!

Allard Defends Anti-Gay Amendment

A few weeks ago, I challenged Colorado Senator Wayne Allard over his proposed amendment to the U.S. Constitution that would ban gay marriage. Allard has since responded; see below for details.

I will respond to his arguments in detail over the next few days. I note now, however, that the Senator did not respond to my accusation that he is attempting to write his personal religion into the Constitution and hence violating his oath of office to protect the Constitution. My assumption is that his intern ("SK") noted the topic and that I am from Boulder, and decided it wasn't worth any more effort than sending the standard talking points on the issue.

Thank you for contacting me to express your concerns regarding the issue of marriage. I appreciate you taking the time to write on such an important issue.

Marriage, the union between a man and a woman, has been the foundation of every civilization in human history. The definition of marriage crosses all bounds of race, religion, culture, political party, ideology, and ethnicity. Marriage is incorporated into the very fabric of our society. It is the one bond on which all other bonds are built and from which families and communities are grown.

As you may know, on January 24, 2005, I introduced Senate Joint Resolution 1 along with 32 of my Senate colleagues. Known as the Marriage Protection Amendment, the resolution states that "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman."

Unfortunately, traditional marriage has been under attack by those who wish to redefine marriage to be something that it is not. Activists have chosen to debate this issue not through the democratic processes such as state legislatures, the Congress, or ballot initiatives, but have instead turned to unaccountable and unelected judges.

The purpose of my amendment is two-fold: First, it defines marriage as an institution solely between one man and one woman, and, second, it ensures that the people or their elected representatives, not judges, decide whether to confer the legal incidents of marriage on individuals. This amendment would not affect civil unions as created by state legislatures, nor the ability of private employers to offer benefits to same-sex couples. This amendment simply affirms the traditional definition of marriage and allows state legislatures, and not courts, to decide the issue of civil unions or domestic partnerships.

I do not take amending the U.S. Constitution lightly. My decision to introduce a Constitutional amendment was made in direct response to the carefully coordinated campaign to circumvent the democratic process and redefine marriage through the courts.

I am pleased that on June 7, 2006, a majority of Senators voting voted in support of my amendment. Although it did not receive enough votes to end the filibuster, the progress that was achieved in the Senate and the states since the first vote on this amendment in 2004 is proof that marriage remains an important issue to the American people.

Thank you for writing to share your concerns. I look forward to hearing from you again. If you would like more information on issues important to Colorado and the nation, please log on to my website at http://allard.senate.gov.


Sincerely,
A
Wayne Allard
United States Senator

WA:SK

Allard Violates His Oath of Office

The U.S. Senate voted today on an amendment to the Constitution that would ban gay marriage. This amendment was authored by Colorado's own Senator Wayne Allard.

Senator Allard: How dare you!? You took an oath to uphold the Constitution of the United States. And here you are attempting to write your personal religion into the Constitution. This is the height of arrogance.

What About the US Constitution Don't You Understand?

Today's pop civics quiz:

When is it acceptable for a religious group to write their beliefs into law?

1. When their beliefs are based on tradition.


2. When a majority of people share their religion.


3. When a majority of religions share their belief.


4. When a majority of people share their belief.

If you guessed E, none of the above, congratulations, you understand a very basic concept key to the first amendment to the US Constitution. If you said anything else, it is time for a brush up.

Here is clue for next time: The Bill of Rights is not designed to protect the rights of the majority. It is designed to protect the rights of the minority from the whims of the majority.

A coalition of religious groups in Colorado is either not smart enough to understand this, or they are trying to pull another one over on us. The group, called Coloradans for Marriage, is backing an amendment to the Colorado State Constitution that would restrict marriage to one man and one woman. Note that this restriction is already part of Colorado law, and the amendment, if passed, would serve only to protect the law against claims that it is in violation of the state constitution.

If you are a regular reader of my essays, you know that when religious groups push political issues I get very concerned on constitutional grounds. It comes perilously close to asking legislators (and the public, in this case) to sanction an official state religion. In this particular case, there are churches and other religious groups that believe the opposite of what has been proposed, so my alarm bells are going at full volume.

Let's look at the group's arguments, and see if there is anything of merit that is not based in a particular religious belief.

1. Marriage between one man and one woman is rooted in centuries of tradition.

   Tradition here being a code word for religion. In any case, one person's tradition is the next person's cultural baggage, and that same tradition is completely irrelevant to the third. Tradition does not imply value.



2. Marriage between one man and one woman is best for children.

   Ok, now you have insulted my Grandma, as well as my wife and me. To say that you are protecting children makes the assumption that the only purpose for marriage is procreation. If your argument is followed to its conclusion, then any marriage in which children are not planned is not valid. You definitely owe an apology to all of us who marry for love or other reasons.



3. We are protecting Coloradans from activist judges.

   You know and I both know that an activist judge is only in the eye of the beholder. It is any judge that rules contrary to the beliefs of the person making the charge. In my mind, any judge that would allow a law that so clearly violates the First Amendment is an activist judge.



4. People [gays] do not have the right to redefine marriage for the rest of us.

   Nobody is redefining anything for you. You are free to believe that gay marriage is wrong. You can ban gay marriage in your church. You can boycott gay marriages. You can even refuse to marry somebody of the same sex.

When two gays marry it does not in any way impact the "institution" of marriage, nor does it hurt any straight marriage in particular. No fewer straights will marry, and the straight marriages that happen will have the same success and failure rates.

It may be that you truly believe that gay people are on their way to hell. Fine. Believe that. Tell them that. Just don't try to pass laws to turn life here into hell.

It may be that gay people disgust you. Fine. Be disgusted. I can sympathize, because I feel the same way about people that try to write their religion into law.
However, I will not try to pass a law or a constitutional amendment to outlaw your behavior.