On the 14th of this month, Federal District Judge Terence Kern struck down Oklahoma’s ban on same-sex marriage. The Sooner state now becomes the third to have to adjust to just such a ruling. Twenty-seven other states have the same law on their books, and each one is being challenged in court. The likelihood is that each one of those suits will prevail.
Because of the recency of the case in Oklahoma, it is worth examining it on its merits, both pro and con, and for the lesson in civics such an effort can provide. To that end, let’s begin with this: By a 3 : 1 margin, the people of Oklahoma approved on the law establishing a ban on same-sex marriage in their state. Since Judge Kern’s decision flew in the face of the will of the state’s people, Oklahoma’s governor and attorney general have both raised vigorous objections, claiming that in a democratic republic like the United States, the majority ought to rule, and individual states should be permitted to manage their own affairs. Boiled down to its essentials, that is Oklahoma’s two-part, “con” argument.
The “pro” argument is precisely where the civics lesson surfaces. As the Founding Fathers (FF) deliberated over what sort of nation we were to become, it was James Madison who warned that the concept of majority rules could be used at the ballot box by a large tyrannical group to disenfranchise or discriminate against a smaller minority one for whatever reason.
To prevent that sort of thing from happening, Madison authored the first ten amendments to the Constitution – what we now call The Bill of Rights, each one of which protected the rights of the individual. In addition, the federal government was, in the Constitution’s “equal protection” clause, assigned the responsibility of safeguarding those rights against assault, whether from another individual, group or even a state.
Apply the contents of the last two paragraphs to the situation in Oklahoma. Plaintiffs argued that the state’s ban on same-sex marriage violated the aforementioned “equal protection” clause, was exclusionary, discriminatory and should therefore be found unconstitutional, in effect saying that the rights of same-sex individuals to marry trumps the right of the state to prohibit such a union. Obviously, Judge Kern, ruling as he did, found that argument compelling. It is worth noting that the same legal drama has now played out in three other states where basically the same pro/con arguments were put forward, and with results that foreshadowed the one in Oklahoma. Hence the title of this blog, though more remains to be said.
In our country, there is no questioning the right of any person or group to hold that homosexuality violates nature and is an abomination in the eyes of their god. But, look at the threat to individual liberty that is posed when those same people, acting on their religious beliefs, seek to pass anti-gay, discriminatory laws through the use of the political process. The great irony is that many of these seemingly well-intended people consider themselves great defenders of the Constitution yet out of ignorance or intolerance, are perfectly willing to trample all over the document’s equal protection clause.
As objectionable as this behavior may be, it is allowable and most be protected under the First Amendment’s right to free speech and participation in the political process. Therefore, those opposed to same-sex marriage must be allowed to press that agenda with the effects of their efforts tested in court; time and time again, if necessary. In the meantime, it would be helpful if both sides of this matter developed some tolerance for the other’s point of view and constitutionally protected rights. Demonizing one another over those differences has no practical value and has only served to exacerbate divisions with a nation that has already been polarized over too many issues.