Marriage Equality and SCOTUS II

Yesterday was the second day in a row that the high court heard arguments dealing with same-sex marriage. At issue Wednesday in United States v. Windsor was whether it was constitutional for the U.S. government to refuse to recognize same-sex marriages that had been recognized by the states.

It is definitely a hot topic, and my post yesterday was hotly debated.  If you have not read yesterday's post and especially the comments, I urge you to do so before continuing to read this post.  One of the central points brought up was the argument that the possibility of procreation was necessary for a marriage and that homosexuals do not have the ability to procreate.  A few years ago, I made the argument that the roots of homophobia lay in the inability of gay people to procreate. Religions and governments need a large number of people to continue, without people who could procreate, then their influence would dwindle.  Many problem exist with procreation being the center of this argument.  Not all married couple can procreate: some are infertile, some women are post-menopausal, others don't want to have children.  Furthermore, gay people can have children.  Most gay men and women are fertile. They can have children through surrogates, or they can adopt children.  I would much rather see a child adopted by a loving family than to be aborted. This argument was even brought up in Tuesday's hearing on Prop 8 when Charles J. Cooper said Prop 8 supports "responsible procreation," Kagan pushed back. "If you are over the age of 55, you don't help us serve the government's interest in regulating procreation through marriage. So why is that different?"  The fact is, it's not.  People who are not able to or have no intent to have children get married all the time.

I also want to state that has no right or duty to legislate religious morality.  Solicitor General Donald Verrilli, representing the Obama administration on the merits of the case, emphasized Congress' discriminatory purpose in enacting DOMA in 1996.  The law "is not called Federal Uniform Benefits Act," he said. "It's called the Defense of Marriage Act."  Justice Elena Kagan pushed a similar point. She told Paul Clement, the lawyer who was defending DOMA on behalf of the House of Representatives' Bipartisan Legal Advisory Group, "that maybe Congress had something different in mind than uniformity" in the definition of marriage. Suggesting the law was "infected with prejudice, fear, spite, and animus," Kagan read a portion of the House Report, which said DOMA was meant to reflect Congress' "collective moral judgment and to express moral disapproval of homosexuality."

The First Amendment clearly states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."  If Congress is enacting religious legislation, such as they did with DOMA, then they are condoning the establishment of their own church governed by the members of Congress. Justice Hugo Black adopted Jefferson's words in the voice of the Court, and concluded that "government must be neutral among religions and nonreligion: it cannot promote, endorse, or fund religion or religious institutions.". In the Board of Education of Kiryas Joel Village School District v. Grumet, Justice David Souter, writing for the majority, concluded that "government should not prefer one religion to another, or religion to irreligion."  Of you are a regular reader of this blog then you know my views on religion.  I write about my faith every Sunday, and I endeavor to make it part of everything that I do.  From what I see of most politicians and members of Congress, I do not want them legislating my religious beliefs.  The United States of America is a republic, not a theocracy.

Frankly, I don't think the government should be in the business of defining marriage, whether it is a state or federal issue.  There should be two distinctions of legal unions, civil unions recognized by the government for legal purposes and marriages recognized by religious bodies.  This is not likely to happen, though it is practiced around the world.  In a way it is even practiced in America when we sign a marriage certificate and we have a ceremony.  It's a sticky issue filled with semantics.  With that being said, I do believe that if the government is going to recognize the unions of opposite sex couple then it should do the same for same sex couple.  There are too many issues at stake for the government not to recognize same sex couples in the same way: adoption, child custody, parental rights, legal status, divorce, taxes, etc.  The government should not and cannot make LGBT people second class citizens anymore.  We deserve the same rights as anyone else.  EQUALITY FOR ALL!