Thursday, July 7, 2011

The Constitution... Can it stand the test of time?

There have been a few articles written recently regarding the controversial topic of gay marriage. I have often kept my feeling somewhere in the middle on this topic - knowing my religious stance on the topic, but also knowing of the need to be tolerant and understanding of how others believe. But with many gays filing lawsuits for discrimination of this or that against religious institutions, it is bound to come to a head really soon. So, over the past few days I have looked deeply at my own feelings and tried to make sense of it all.

Although superficially the topic is gay marriage, it is really just one of many gay issues taking aim at a much deeper issue. I had always thought that the battle was just about conservatives and religious groups trying to prevent gay marriage because it philosophically went against their belief. I am conservative-leaning and have often leaned that way, but with a sense of compassion for the issues that gay couples face and knowing that the constitution was established in order to protect the rights of all and to provide those rights equally to all (even those who believe differently)- because, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness"

The deeper issue will test and strain the constitution to it's limits because society would attempt to pit two apparent rights against each other, causing one to win, and the other to be less relevant. If one right given in the constitution is made less relevant, then any right can more easily be made less relevant. But, should any guaranteed right really be more or less relevant than another? The easy answer is "no", but life doesn't generally give easy answers. Or, perhaps, maybe we just tend to make easy answers more difficult than they should be!

So, back to topic at hand: which two rights are at battle with each other? Well, it is the above concept of: all men are created equal (from the Declaration of Independence - not technically constitutional, but a consensual god-given and "unalienable" right) versus the freedom of religion guaranteed in the Bill of Rights- "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Unequal privileges due to unequal contributions
Homosexuals want to enjoy the same, equal "privileges" that heterosexuals enjoy - marriage to the one they love and the legal privileges and incentives that come with that. But that poses the question of, "Why does the government give privileges and incentives to those who are married? From a government standpoint, why not just take those incentives away and make everyone equal, whether married or not? Why even get married? Marriage anymore, is nothing more than a mere piece of paper that says you are legally eligible for those incentives. Of course, if you live with someone long enough, you can get most of those incentives anyways. If you get married and end up not liking each other, then you have a messy and expensive divorce. Most people prefer to "fly with the wind" and "pick-up and go when they want". "If you love someone, why do you need a piece of legal paper to say so," they rationalize.

I believe - if studies have not already proven, they would prove - that a family raised by a loving, heterosexual couple, legally married and committed for life, provide the optimum learning environment for a child to grow up in. There is no other kind of relationship that you can come up with to try and replicate it that will be more, or even as successful as this environment could offer. Nothing could provide the balance of a husband and a wife, male and female characteristics, committed to each other, and committed to the children they bear - their own creation - to raise them to be productive, successful, giving, and law-abiding citizens. This is not ground-breaking news, but has been known since the foundation of this country. That is why incentives are given to this form of relationship - good, productive, law-abiding citizens benefit the nation while the opposite are a drag and a detriment to the peace and stability of the nation. This is not to say that other forms of family cannot do a good job. Just that they cannot do as good of a job, nor are they as likely to do a "good" job. If you give equal incentives for a less-than-equal contribution to society, well, it just sounds like a raw deal to me.

The Emotion and Confusion
To get a good perspective of how confusing this debate is, you must read this NPR Story on both sides of the battle, followed by the LDS perspective of the Proposition 8 battle.  In another NPR story on the same web page, it gives some examples of lawsuits across the nation dealing with this topic. They are as follows:

Adoption services: Catholic Charities in Massachusetts refused to place children with same-sex couples as required by Massachusetts law. After a legislative struggle — during which the Senate president said he could not support a bill "condoning discrimination" — Catholic Charities pulled out of the adoption business in 2006. (The Massachusetts law should be deemed unconstitutional
Housing: In New York City, Yeshiva University's Albert Einstein College of Medicine, a school under Orthodox Jewish auspices, banned same-sex couples from its married dormitory. New York does not recognize same-sex marriage, but in 2001, the state's highest court ruled Yeshiva violated New York City's ban on sexual orientation discrimination. Yeshiva now allows all couples in the dorm.
Parochial schools: California Lutheran High School, a Protestant school in Wildomar, holds that homosexuality is a sin. After the school suspended two girls who were allegedly in a lesbian relationship, the girls' parents sued, saying the school was violating the state's civil rights act protecting gay men and lesbians from discrimination. The case is before a state judge.
Medical services: A Christian gynecologist at North Coast Women's Care Medical Group in Vista, Calif., refused to give his patient in vitro fertilization treatment because she is in a lesbian relationship, and he claimed that doing so would violate his religious beliefs. (The doctor referred the patient to his partner, who agreed to do the treatment.) The woman sued under the state's civil rights act. The California Supreme Court heard oral arguments in May 2008, and legal experts believe that the woman's right to medical treatment will trump the doctor's religious beliefs. One justice suggested that the doctors take up a different line of business.
Psychological services: A mental health counselor at North Mississippi Health Services refused therapy for a woman who wanted help in improving her lesbian relationship. The counselor said doing so would violate her religious beliefs. The counselor was fired. In March 2001, the United States Court of Appeals for the Fifth Circuit sided with the employer, ruling that the employee's religious beliefs could not be accommodated without causing undue hardship to the company.
Civil servants: A clerk in Vermont refused to perform a civil union ceremony after the state legalized them. In 2001, in a decision that side-stepped the religious liberties issue, the Vermont Supreme Court ruled that he did not need to perform the ceremony because there were other civil servants who would. However, the court did indicate that religious beliefs do not allow employees to discriminate against same-sex couples.
Adoption services: A same-sex couple in California applied to Adoption Profiles, an Internet service in Arizona that matches adoptive parents with newborns. The couple's application was denied based on the religious beliefs of the company's owners. The couple sued in federal district court in San Francisco. The two sides settled after the adoption company said it will no longer do business in California.
Wedding services: A same sex couple in Albuquerque asked a photographer, Elaine Huguenin, to shoot their commitment ceremony. The photographer declined, saying her Christian beliefs prevented her from sanctioning same-sex unions. The couple sued, and the New Mexico Human Rights Commission found the photographer guilty of discrimination. It ordered her to pay the lesbian couple's legal fees ($6,600). The photographer is appealing.
Wedding facilities: Ocean Grove Camp Meeting Association of New Jersey, a Methodist organization, refused to rent its boardwalk pavilion to a lesbian couple for their civil union ceremony. The couple filed a complaint with the New Jersey Division on Civil Rights. The division ruled that the boardwalk property was open for public use, therefore the Methodist group could not discriminate against gay couples using it. In the interim, the state's Department of Environmental Protection revoked a portion of the association's tax benefits. The case is ongoing.
Youth groups: The city of Berkeley, Calif., requested that the Sea Scouts (affiliated with the Boy Scouts) formally agree to not discriminate against gay men in exchange for free use of berths in the city's marina. The Sea Scouts sued, claiming this violated their beliefs and First Amendment right to the freedom to associate with other like-minded people. In 2006, the California Supreme Court ruled against the youth group. In San Diego, the Boy Scouts lost access to the city-owned aquatic center for the same reason. While these cases do not directly involve same-sex unions, they presage future conflicts about whether religiously oriented or parachurch organizations may prohibit, for example, gay couples from teaching at summer camp. In June 2008, the federal Ninth Circuit Court of Appeals asked the California Supreme Court to review the Boy Scouts' leases. Meanwhile, the mayor's office in Philadelphia revoked the Boy Scouts' $1-a-year lease for a city building.
The Constitutional Analysis
Here is why these lawsuits are all bogus:

Can some one claim religious freedom to kill women who wear too short of skirts? Yes, as long as they do not act by taking away the rights of others. They can believe what they want, but when they take a life, they've gone too far because it takes away the rights of others. No rights are being denied. Last I checked, there is no right to adopt, no right to wed at whatever location you want, no right to have the photographer of your choice photograph your wedding, and so on. No rights have been violated. The constitutions says that, "..all men are created equal" and that we have a right to "the pursuit of Happiness."  It does not guarantee happiness nor that we should be treated equally.

Although no rights are being denied in the above lawsuits, do religions who teach against homosexuality infringe upon the rights of homosexuals? Does anyone have a right to worship where they are not welcome? Do anti-discrimination laws even apply to religion?
I believe that anti-discrimination laws cannot be applied to religious institutions under any circumstances. By the government getting involved in setting the rules of affiliation, they, in essence, have established a state religion by defining the rules of membership. If that were to happen, it would do so with blatant disregard for the first amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." If government can establish rules for membership, what is to stop them from also regulating any other aspect of religion in the name of "equal rights"? Maybe then, the government could step in and ensure equal access into heaven! 

When equal access becomes more important than freedom of religion, then every other right guaranteed in the constitution will also be at the mercy of equality... and the constitution will be left insignificant and "nice, but not relevant to our day".

1 comment:

  1. I get tired of people misunderstanding this concept. Yes we are created equal but we are not treated equal, as per agency. If everyone has to be equal in everything, that brings the standard so low that we will just become idiots! Nothing would be fair if we were all treated "equal".