Ron Paul vs. the Constitution?

Readers of this site know that I’m a Ron Paul fan. Even though I fundamentally disagree with him on fiscal policy, I appreciate the way he sticks up for the Bill of Rights, speaks out against American interventionism abroad, and votes his conscience. We need more honest people like him in politics.

That being said, the Texas Congressman has it totally wrong on the Obama administration’s decision to stop defending the ridiculously named Defense of Marriage Act in federal courts. In announcing the decision Wednesday, Attorney General Eric Holder said that DOMA “contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships—precisely the kind of stereotype-based thinking and animus the [Fourteenth Amendment’s] Equal Protection Clause is designed to guard against.”

Paul penned a response critical of the administration’s position, saying in part,

The Defense of Marriage Act was enacted in 1996 to stop Big Government in Washington from re-defining marriage and forcing its definition on the States…I believe that marriage is between one man and one woman and must be protected.

I supported the Defense of Marriage Act, which used Congress’ constitutional authority to define what other states have to recognize under the Full Faith and Credit Clause, to ensure that no state would be forced to recognize a same sex marriage license issued in another state. I have also cosponsored the Marriage Protection Act, which would remove challenges to the Defense of Marriage Act from the jurisdiction of the federal courts.

First off, what Paul is essentially saying is, “Big Government in Washington defined marriage to stop Big Government in Washington from re-defining marriage and forcing its definition on the states.”

Apparently, Paul views DOMA as a preemptive strike against a future Congress that is run by gay-loving states’ rights haters who will define marriage as a union between any two persons. I don’t think he has much reason to worry about that happening in his lifetime.

Until today I did not know Paul’s position on DOMA, though I assumed he was against it because the legislation does two things that seem to be anathema to his principles. For one thing, DOMA defines marriage as “a legal union between one man and one woman as husband and wife.” Paul is personally opposed to same-sex marriage, but I had always figured that the idea of the federal government (Congress) defining marriage would thoroughly repulse him. Nowhere in the Constitution is Congress given the power—either expressly or implicitly—to define marriage, thus reserving it to the jurisdiction of the states.

But DOMA does something else, and this is the key to understanding Paul’s misguided position on the legislation. DOMA also declares:

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.

To say this provision is constitutionally on shaky ground is an understatement. Consider the Constitution’s Full Faith and Credit Clause which Paul mentioned above:

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.

The purpose of this clause is clear. A legal contract entered into and legitimized in one state must be recognized as such in another. If you and your significant other get married in Massachusetts and move to Ohio, you don’t have to get married again, in Ohio, in order to get a another marriage license. The state of Ohio is obliged to recognize the license issued in Massachusetts. This much no one disputes. But DOMA tells states they can ignore the Full Faith and Credit Clause when it comes to marriage licenses issued to same-sex couples. Thus, under this law, Ohio does not have to recognize a legal same-sex marriage consummated in Massachusetts.

But can Congress simply deem certain state laws exempt from the FFCC? The Clause says that Congress “may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” I’m not sure there is anything here that gives Congress the power to tell the states that they may ignore one another’s laws altogether, thereby rendering the actual full faith and credit part of the Full Faith and Credit Clause a mere suggestion.

Paul asserts that Congress has “constitutional authority to define what other states have to recognize under the Full Faith and Credit Clause.” But if this is the case, then why doesn’t the FFCC just say so? The word “except” occurs eleven times in the original Constitution. The Framers were not afraid to utilize this word for the sake of specificity. Indeed, one can easily imagine a wording of the FFCC that leaves no doubt as to its intent. If Paul’s reading is correct, why doesn’t the Clause say something like,

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State [except those Acts, Records, and judicial Proceedings expressly exempted by the Congress]. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Without additional wording of this kind, however, the FFCC is vague, and in such a manner that I don’t think can be construed as to allow Congress the authority to exempt certain acts which some states, or Congress itself, may find objectionable. The Clause only says that Congress may, but is not necessarily obligated to, prescribe how such acts and records are proved and what effects they have, not what if any acts and records are exempt from this provision altogether.

There are also Equal Protection implications of DOMA, as mentioned by Holder, but that is a whole other issue. Sufficeth to say conservatives hate the Equal Protection Clause, or at least the way in which it has been interpreted by federal judges for the last century, because states can no longer discriminate as freely as they once did against certain demographics. Perish the thought that federal government act as a guarantor of life, liberty, and property against the occasional anti-liberty machinations of the states.

Of course, all of this Constitution-parsing and legal wrangling—important though it is—takes away from one very fundamental fact: there is no good reason for opposing same-sex marriage. To be opposed to this is to be bigot. Ron Paul and millions of other Americans ought to be ashamed of themselves for their position on this issue.

- Max

max.canning@gmail.com

Hick High School Cancels Prom To Avoid Having To Allow In A Lesbian

Forsooth

A Mississippi high school faces a lawsuit over its decision to cancel its prom rather than allow a lesbian high school student attend with her girlfriend…

...At the center of the lawsuit is a memorandum from the school to students, dated February 5, which states that prom dates must be of the opposite sex.

Also, when McMillen expressed a desire to wear a tuxedo to the prom, the superintendent told her only male students were allowed to wear tuxes, according to court documents.

Superintendent Teresa McNeece also told McMillen that she and her girlfriend could be ejected from the prom if any of the other students complained about their presence there, according to the documents.

The prom was canceled after McMillen and the ACLU tried informally to get the school to change its stance.

CNN

You may have noticed that at select points in some of my writings, I trash the American South. Several people have emailed me to complain about my “Northeast liberal elitism.” But this isn’t about elitism. It’s about the South being as backwards as shit. Whether it’s an attempt to teach creationism in science classes, or willfully telling a journalist that they don’t like Obama because “He’s a fucking nigger,” or treating gays like second class citizens, many Southerners of this fine nation have a serious problem. This isn’t to say that most of them are like this, but there sure are enough ignorant redneck fuckwits to give the whole region a terrible reputation.

Such is the case with Itawamba Agricultural High School in Fulton, Mississippi, which apparently is run by people so sexually repressed, that in the 21^st century they cannot bear the sight of two gay students attending a prom. As if the poor girl weren’t feeling ostracized enough by her school’s official policy to exclude her and her partner from the prom, the school has sinisterly cancelled the whole thing. Sane people will consider this episode and determine that it is the school officials who are being ridiculous and inconsiderate. But yours truly has spent some time today on the comments threads of the local Southern news media. The anonymous responses are astounding. Many people commenting from locations in Arkansas, Mississippi, Tennessee, and other red state backwaters have seen fit to blame the lesbian student for the cancellation. There wouldn’t be a problem, one of them says, if only gays wouldn’t try to advance “their perverted lifestyles down all of our throats. Are you really proud of your sickening selves?”

The claim that gays “flaunt it” is a ragged canard. It’s not as if gays go around unwelcomingly hitting on people of the same sex. When homophobics say that gays flaunt themselves, what they’re really complaining about is the fact that more gays are simply out of the closet. The haters liked the good old days when gays were afraid to let it be known who they are. Thankfully, gays are becoming increasingly accepted in American society. And some people just don’t like it.

Why? Who knows? Religion I’m sure plays a large role. Also, people who merely are different have often been the targets of social ridicule, especially in the South. Different religions, different skin colors, different languages, and different sexualities have never played well down there. These are important factors, as is another commonly overlooked motive because of its uncomfortable premise: the theory that homophobia is often (though not always) the product of repressed homosexual desires in the homophobic himself. Think Roy Cohn, Ted Haggard, Larry Craig, Roy Ashburn, or any other anti-gay religious or political figure who turned out to be a flaming homo.

So whenever I see rabid homophobia on display, I can’t help but ask myself, what’s really going there?

- Max

In Defense Of Same-Sex Marriage

The arguments against same-sex marriage are of two kinds: the first pertains to the perceived sinful nature of the practice of homosexuality by most religions; the second has to do with the alleged adverse effects same-sex marriage would have on children. Neither case withstands even a modicum of scrutiny—a fact that suggests that the fundamental driving force behind the opposition to SSM is plain, crude, ugly bigotry, cloaked in a superficial moralism so as to lend legitimacy to a position which seeks to deny certain people a fundamental right.

The basis for the prohibition on homosexuality in Western culture has been the Old Testament, specifically Leviticus 18:22 which states,

“Do not lie with a man as one lies with a woman; that is detestable (an abomination).”

This passage is authoritatively cited, as if its tenets could possibly have any moral bearing on the lives of modern humankind. Anyone who is familiar with the book of Leviticus knows that its content is overly concerned with the proper ways to make offerings to the Lord, and female menstruation. A clear majority of the book’s instructions are not followed by even the most ardent of the faithful, as its commandments reek of the sort of antiquated paganistic ritual sacrifice that was commonplace during the time when humans knew very little about how the world works.

This same book of the Old Testament gives the following instruction in 19:19:

“Keep my decrees. Do not mate different kinds of animals. Do not plant your field with two kinds of seed. Do not wear clothing woven of two kinds of material.”

If the State’s legal codes were truly grounded in biblical precepts, how many poor farmers might be needlessly persecuted under such a régime? How many of us would have to burn our sinful hybrid garments and throw ourselves to the ground so that we may grovel and plead for forgiveness from the Lord for having committed such a gross violation of divine law? The prohibition against mixed fabric is even repeated in Deuteronomy 22:11, implying that it is an important commandment indeed. And yet, for all the apparent seriousness with which that diktat is promulgated, it is regularly ignored by Christians and Jews the world over. This blatant and shameless disregard for particular ecclesiastical laws would seem to indicate an inconsistent application of the Bible’s maxims, and thus, a porous foundation upon which to build a case for the exclusion of homosexuals from the institution of marriage. Biblical prohibition or sanction is hardly a justification for anything. Christians speak of “defending” marriage from SSM, but we do not hear them ruing the failed defense of slavery against the abolitionists. Slavery, like marriage, is an institution clearly justified throughout the Bible, and yet we ought to be hard-pressed to find a Christian or anyone else who would have us reinstitute that practice, despite its obvious approbation by the “Good” Book.

One could go on for days in this fashion, examining passages in the Bible that people of most faiths and cultures find depraved and an insult to humanity, even in America, which has a startling number of fundamentalist Christians. Hence, we must conclude that Americans are not moral because of the Bible, but rather they are moral in spite of the Bible. That the faithful adopt those biblical principles they find agreeable, and discard those they find contemptible or impractical, are clear indications that humans are capable of formulating their own moral codes without “divine” guidance. This is not to say that humans are perfect or incapable of transgression; but it is certainly within their capacity to devise norms conducive to social cohesion, as evidenced by the complete disregard for the majority of biblical commandments. To wit:

Exodus 21:20

If a man beats his male or female slave with a rod and the slave dies as a direct result, he must be punished, 21 but he is not to be punished if the slave gets up after a day or two, since the slave is his property.

Exodus 22:18

Do not allow a sorceress to live.

Leviticus 20:9

If anyone curses his father or mother, he must be put to death. He has cursed his father or his mother, and his blood will be on his own head.

Leviticus 21:18-23

No man who has any defect may come near: no man who is blind or lame, disfigured or deformed; no man with a crippled foot or hand, or who is hunchbacked or dwarfed, or who has any eye defect, or who has festering or running sores or damaged testicles. No descendant of Aaron the priest who has any defect is to come near to present the offerings made to the LORD by fire. He has a defect; he must not come near to offer the food of his God. He may eat the most holy food of his God, as well as the holy food; yet because of his defect, he must not go near the curtain or approach the altar, and so desecrate my sanctuary. I am the LORD, who makes them holy.

Deuteronomy 21:18-21

If a man has a stubborn and rebellious son who does not obey his father and mother and will not listen to them when they discipline him, his father and mother shall take hold of him and bring him to the elders at the gate of his town. They shall say to the elders, “This son of ours is stubborn and rebellious. He will not obey us. He is a profligate and a drunkard.” Then all the men of his town shall stone him to death. You must purge the evil from among you. All Israel will hear of it and be afraid.

Et cetera, et cetera, ad nauseam.

And it is because of this disregard that the Bible-based opposition to SSM is wretched, disingenuous, poltroonish, in short a disgrace. These cherrypickers have adopted a convenient à la carte system of biblical morality that enables them shun a great deal of divine instruction while selectively invoking their preferred commandments at opportune places to demonstrate a faux moral superiority.

The second argument against SSM is a familiar refrain in American political and social life: The Children. In the United States, The Children have been invoked to try to stop everything from SSM to (counterintuitively) a government-run health care plan. Whenever someone says that we as a society need to think about The Children, what that person really means is that we ought to be thinking about him—specifically, his worldview and all of the prejudices and buffooneries that come with it. After all, “I hate fags,” however dearly held this conviction may be, cannot be presented as a serious argument. Thus, The Children are brought forth in a fraudulent attempt to put a noble face on an otherwise heinously ignoble mug.

During the run-up to last month’s vote in Maine on whether to allow SSM in that state, several anti-SSM commercials ran on radio and television, including this one:

There are a few lessons one could draw from this video, but the two that stand out are:

1. The chief function of marriage is procreation (“What’s marriage for?”)

2. The little girl is disadvantaged because she has two fathers

If, as this ad implies, marriage is for having kids, then we are forced to conclude that impotent men, barren women, and heterosexuals who do not desire children have no more business getting married than homosexuals. This seems like an odd conception of marriage.

The other implication here is that the girl in the ad is entitled to have a mother and a father. However, at this very moment, millions of American children are being reared by single parents, and only have mothers or fathers, but not both. Are these households automatically unfit for children to grow up in? Of course not. So what would be so inappropriate about a household with two fathers? It seems to me that in a given situation, two parents would be better than one. Apparently, the producers of this commercial would rather send this girl back to the orphanage where she presumably came from.

Continuing with The Children theme, here is another idiotic commercial from that campaign:

In other words, it’s best to shield The Children from the reality that there are in fact gay people, for as long as possible. That way when they’re older, they will be able to consider the question of gay rights the way god intended: with extreme ignorance and prejudice, and become, for all intents and purposes, just like the dunderheads in this commercial.

Kids should be taught the gays exist; and not only do they exist, but they’re people just like everybody else. And sometimes they even adopt kids who could use a good home because their heterosexual alcoholic mothers and their heterosexual abusive fathers are incapable of caring for them. The earlier children become acquainted with these facts and are taught that there is nothing wrong with gay people, the less likely they are to treat horribly those children who come from same-sex households.

Whatever the stated rationale for the opposition to SSM may be, ultimately the reason behind it is irrational bigotry and hatred. SSM has been legal in Massachusetts for five and a half years now, and contrary to the prognostications of doom for marriage in the state, the institution itself is alive and well, and has the lowest divorce rate in the country. There has been no collapse of the family. Married men and women are not leaving their spouses to go cavorting and sodomizing in Provincetown. There have been no calls for the legalization of polygamy or demands that people be able to marry donkeys, cats, and trees. To no one’s surprise, none of patently ludicrous predictions prophesied by the bigots have come true—an eventuality they were surely aware of; for nobody could be so dense as to believe that SSM would be a gateway to interspecies marriage. And if they were, it is a wonder that they have not yet died from sheer stupidity. No, most SSM opponents knew full well that nothing of the sort would happen, but they needed to cite “practical” social concerns to justify their absurd hatred of people whose lives they knew—and still know—nothing about.

Since opponents of SSM seek to deny millions of people a basic civil and social right, they are to be regarded with the utmost contempt. The excuse that their faith prohibits them from supporting such a measure is bogus. These people do not stone their children when they misbehave. They do not kill witches. They wear clothes made of two or more materials. And so on the subject of SSM, their religion is merely a convenient front for what is otherwise bald-faced bigotry.

- Max