Gay Marriage Considered Under the Equal Protection Clause

Perhaps it would be good, from time to time, to drop the grandiloquence and the witty turn of phrase and do more close-in legal analysis of some things which are in the public realm of discussion these days.  Such as, gay rights & gay marriage, two issues given higher visibility by the nomination of Rick Warren as the Communicator with our Invisible Friend as the religious start of a secular proceeding next month.  (First question: why are we praying at a state function?  It's unConstitutional in the extreme.)

I am taken to task from time to time for not observing the distinction which the Christian Evangelicals, as exemplified by Rick Warren and his Orange County cult, maintain between "tolerance" for homosexual activity and "endorsement" of such activity.  Herein, I am told, lies my failure to comprehend.  Evangelicals have "compassion" for gays; it's just that their belief system does not allow them to go so far as to "sanction" or "legitimize" such unholy practices as marriage between two persons of the same sex.  If I could understand this, you see, I would see The Light.

One wonders, of course, if the confidence of Evangelicals is this serene and untroubled, why Rick Warren told his Webmeister to take down the "No Gays Allowed" part of his website (saddlebackfamily.com) a few days ago.  It seems so...what's the phrase?  PR driven.  It's almost as if some deal got worked out by the Obama Transition Team and the madhouse in the OC.  (I was honestly trying to keep this post high minded, but it's just too much fun to write like this.  Sorry.)  Wouldn't you love to have a transcript of that telephone call?  "Hey Rick," Rahm says, "we don't mind you busting gays there in wherever the hell you are, but you gotta pull that 'Keep Out' sign from the website, capisc? We're taking some real heat from our side."  Rick:  "No problem. It's not like I believe any of this shit anyway.  It's just red meat for the Wal-Mart sales staff in the pews."  

Still...and along more serious lines.  The fundamental error in the specious distinction offered by the Evangelicals, which they use as a means of avoiding a charge of bigotry, is based on two false premises: First, civil rights in this country are not determined according to a religious standard.  And second, civil rights are not a matter of majoritarian "tolerance;" it is not the province of Evangelicals, or any other pressure group, to determine who gets to enjoy their fundamental human liberties.

The first error is based upon a confusion, in the case of gay marriage, between religious and secular institutions.  The state-sanctioned union of two people in marriage carries with it a great number of practical ramifications and exists as a legal arrangement. While the state permits marriage ceremonies to be performed by religious officials, marriage licenses are issued by the state.  You can get married with a marriage license in a ceremony performed by a judge, for example.  But the Catholic Church does not issue marriage licenses binding on the state.

Gay marriage offends the religious ideas of the Evangelical right wing because they perceive of marriage as a holy arrangement ordained by God.  That's fine if they want to believe that.  Such an attitude is not binding on the State.  The inability of the Evangelicals to see this easy and fundamental distinction lies at the root of their difficulty in being fair.  An analogy might make the point clearer.  If Evangelicals believed that the black man was a racial inferior who should be denied public office (as the Mormons, world leaders in this new intolerance, once did), that would not make the case for such discrimination.  The Equal Protection Clause would strike down the discrimination anyway, and the First Amendment's Establishment Clause would be cited in support of the ruling.

It is simply because "marriage" and "family" have acquired such a totemic, proprietary status among Evangelicals that they feel they have the right to enforce their bigotry in this area of civil rights. The "institution" of marriage will be threatened if gays are allowed to marry, they say.  No it won't.  The institution will be enhanced and made more generally available.  Pastor Rick's fear that gay marriage will lead to polygamy, pedophilia and incest, as he expressed in an interview on national TV, demonstrates only one thing: he's a really dumb guy, which is another reason I'm scratching my head over this Obama sell-out.  (Pastor Rick also expressed his desire to sleep with all the beautiful women he sees.  Oh man, there is going to be such a scandal someday down in Saddleback.  Obama is so going to regret this choice.)

The second point is that we don't subject fundamental civil liberties to popular vote.  We protect fundamental rights from "the tyranny of the majority," in de Tocqueville's wonderful phrase.  One day (ironically, after Obama replaces the Medieval thinker Antonin Scalia with a secular judge) the Supreme Court will rule, under the Equal Protection Clause, that gays, possessing an unalterable natural trait, sexual orientation, are denied equal protection on the basis of that innate characteristic by preventing them from marrying in the one, honest way they can.  This ruling will be, first, a victory of science over religious obscurantism and its sin-obsessed views of homosexuality, and second, a triumph of compassion and justice over bigotry.

As a civil libertarian and a believer in freedom of religion, I will, of course, go on arguing for the fundamental right of Evangelicals, Mormons, Catholics and others afraid of science and progress to be safe and secure in their discrimination and hatred, as long as it doesn't spill over into their old practices of violating secular laws, such as burning people at the stake.  Also, I would encourage them to read the New Testament a little more closely, since it doesn't really have a bad word to say about consensual homosexuality.  It was concerned with pederasty, a form of sexual assault upon adolescent prostitutes and slaves which was as much a problem among heterosexuals as the "gays" of Biblical times.  This is the sort of distinction which Pastor Rick, of course, is not likely ever to grok.  Jesus himself was a very tolerant guy; I'm pretty certain I know how he would have voted on Proposition 8.

Obama & Warren

Somewhat more than a year ago my cousin, oft-published writer, musician, philosopher, wit and alumnus of the same demented Fundie denomination that so scrambled my early cognitive development, had the idea that we should attend a "reunion" of the 17th Street congregation of this very church.  The 17th Street in question is on the western edge of the Mission District, not far east of Eureka Valley, and just a few blocks away from the heart of the Castro District, all of these locations in San Francisco.  Trusting my older cousin's judgment, and not wanting him to go through such an experience alone, I tagged along.  The congregation that used to meet at 17th Street now meets out at Lake Merced, along Brotherhood Way, in a soulless building, a giant A-frame, with an accompanying, depressing multi-purpose building. It was a foggy, cold day, which is to say: a day in San Francisco. The reunion started out with a Continental breakfast, a long table laden with the usual victuals typical of the denomination's Southern roots: ham, potato salad, fried chicken, strawberry cream pie.  Looking at this array, my cousin said, sotto voce, "What Continent?"  I told you he was a witty guy.

One of the "highlights" of the reunion was a visit to the old 17th Street building, which I remembered dimly from my 1950's youth.  The truth is, unlike my cousin, I never attended this church with any regularity.  I was down the Peninsula, but on occasion my mother would bring her sons up north for a special event, like the Sunday Pat Boone preached there.  What I remembered about the church was the semi-circular auditorium, with its great skylight in the ceiling, the balcony and the cold San Francisco wind forever blowing into the building.  

The building had changed hands.  It was now under the control of the Cornerstone Church, another Fundamentalist church which was to the Fundie church of my youth as National Socialism is to the politics of Nelson Rockefeller.  Our guide was a young fellow with a goatee and righteous attitude who displayed (subtle but nevertheless ill-disguised) contempt at the old congregants on the tour, at the pathetic size of the former 17th Street congregation (maybe 200 souls on a big Sunday), at the old-fashioned look of the joint when they first moved in, at how generally out of it those old alumnae now marooned out at Lake Merced really were.  The skylight had been removed and replaced with a hi-tech lighting array, which was much more conducive to the rock bands featured in the liturgy.  The guitars, drum sets, amps and mikes were all set up on the "stage" (what we might have called the dais back in the old days), in preparation for Sunday's gigs (the reunion was on a Saturday). On Sunday, our guide told us, they really packed 'em in, five or six separate shifts over the course of the morning, all SRO.  They recruited congregants from all over the Bay Area, but he was careful to tell us, turning to face West and pointing toward the Castro with both hands, that they did not recruit from the "gay community."  "We don't kowtow to the gays," he said proudly.  Because I am, in my own way, as much of a smart aleck as my cousin I couldn't stop myself from wondering in a stage whisper, "Who would Jesus kowtow to?"

As I've aged, I realize I've lost touch with a lot of things as they've developed, metastasized, degenerated, whatever you want to call these decadent changes in American society. One of those developments is the huge growth in the size and corporate structure of these Fundie religions, now mostly called Evangelical, I guess.  This thing at 17th Street was not the Old Time Religion of my youth.  If you look at Pastor Rick's website at Saddlebackfamily.com, you'll be astounded at the slick, corporate, PR-driven, New Age look of the place.  It's kind of Dr. Phil meets Elmer Gantry hitched to the Recovery Movement.  Twelve-Step flowing seamlessly into career advancement flowing into Group Identification flowing into complete and utter madness.  This Purpose Driven Life stuff that Warren is selling is snake oil and bullshit.  It has all the trappings of a cult, different from Jim Jones & the People's Temple in the sense that the Kool-Aid they're all drinking is the ambrosia of Warren's megalomania.  The Supreme Leader (the goateed and omentum-paunchy Pastor Rick), with his array of "degrees" from various undistinguished religious "colleges," the enmeshment in all kinds of "ministries," meetings, Singles Groups, Couples Groups, Campuses, onward ad absurdum ad nauseum--like all cults, it's all about a quality of total immersion in a group under the charismatic sway of a Personality of dubious provenance and highly-questionable motivations.

And of course: gays need not apply. The website specifically declares that gays cannot become members.  Never mind this latter-day qualifying and excuse-making about whether Pastor Rick is a homophobe.  You bet your sweet ass he is.  I'm a straight man myself, but I do bear in mind the old adage that it's best to defend the rights of the oppressed in order to ensure the rights of all. Otherwise, when the forces of dark intolerance come for you, there will be no one to champion your rights.  Warren is running the same kind of shop as that creep on 17th Street; it's just that Rick has gone very, very big-time with it. Rick Warren, son of a Baptist preacher in a congregation no doubt very much like the church of my youth, saw that in modern America, slick & corporate packaging sell.  Give the suckers what they want.  Give them quick and easy answers to life's eternal dilemmas (like EST once did), give them high-tech, give them one-stop shopping for all their Recovery Needs.  And give them Hate, some things and some people to be against.  Give all these desperate, yearning people the sense there are people they are better than.  Oldest demagogue's trick in the book.

And Barack fell for it.  He put a guy like that at the top of the playbill.  Sign of the times, I guess.  Well, the guy carries some clout, he's got Visibility, he's Hot, at least for a little while, and in this day and age, that's all that really matters.

Faith-Based Request for Money

Memorandum

To: President Barack Obama
From: Henry Waldenswimmer, President, Church of Seinfeld ReRuns
Re: Funding request, 2009

Dear President Obama:

I was astounded to see that you intend to continue and expand former President Bush's program of "faith-based initiatives," particularly in light of your past work as a professor of Constitutional law. I would assume that the "Constitution" in question is that of the United States and not that of, say, Vatican City or the world's "newest democracy," Iraq, which uses Sharia as its fundamental source of legislation. That being the case, I am perplexed; is it possible that you taught only the unamended Constitution? That could explain a few things; for example, if you had gone on, you would have encountered the First Amendment, which reads as follows: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." Simple, economical language. Those guys were good, weren't they?

You know what I think they were saying? I think they were saying that the federal government should stay the hell out of religion. Period. End of story. G-Men don't go into churches or synagogues or mosques and tell the congregations how to pray; and in public school, we study science and other secular subjects and leave the prayer and "intelligent design" to the churches. There is no "national religion" in the United States. This is not a "Christian nation" despite what people like George Bush or Mike Huckabee say. The government tolerates religions; it doesn't get involved in their establishment, maintenance or practices. There are Christians in this nation, as there are Jews, Muslims, Hindus and millions and millions of atheists. The First Amendment guarantees that all are free to pursue their religions, or their irreligion, to their hearts' content. Justice Souter of the Supreme Court recently reaffirmed the principle in the case of Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994), where he wrote for the majority "government should not prefer one religion to another, or religion to irreligion."

You're convinced that religions are good at delivering "poverty alleviation" and other services. So they well may be. People who attend churches often do good works. They also give money, their own, when the basket is passed. The churches can use this money to alleviate poverty, run a food bank, build a homeless shelter. The federal government should stay out of it and let the churches do what they want with the money they have. If you think that the federal government needs to do more to alleviate poverty, then you can dust off ideas from the Great Society, for example, and run something called a "government based initiative." Otherwise it looks like you're just trying to buy votes from churches by promising them money. You know? A "faith based initiative" is another name for "taxpayer supported religion," and please don't pretend you don't understand that. You're way too smart. George W. Bush walked around in the world with the guiding presumption that whatever he was, whatever he believed, should work for everybody, and so if he thought that the government should get involved in the religion business, particularly
Protestant religions of a decidedly Right Wing bias, then that's okay, because "it's the right thing to do," the Constitution be damned.

Now you're doing it. This is the way that a bad idea, a clearly unconstitutional idea, becomes standard operating procedure. The same kind of thinking led to the repeal of the Fourth Amendment. If the President does something long enough, like illegal spying, and Congress is "in on it" and does not draw a distinct line early, it becomes the new normal, and the process of devolution then begins from there with the new administration.

But if you're going to give religions money to do government work, then give me some too for my Church of Seinfeld ReRuns. We watch Seinfeld "religiously." It is true that the characters in Seinfeld ReRuns don't practice religion; in fact, they don't appear to believe in anything. They are all post-modern Existentialists who depict the other great trend in American culture, the one that isn't about End Times and the Rapture and the rest of it. The trend toward mindless narcissism, materialism, rejection of normal family life, lack of connection. As American as apple pie, really, and to give money to the local Baptist Church for their do-good projects while leaving out our group is "preferring religion to irreligion" in contravention of Grumet, supra.

I know what you're thinking: We're a decidedly irreligious group and perhaps for that very reason should not expect a government hand-out. Yet when you think about it, that can't be what Hamilton, Jefferson, Adams, et al. had in mind - why should we be the ones who are disfavored? The federal government is supposed to be neutral on the question of religion. Why don't you give us a try? If you're going to violate the First Amendment as official policy, at least make it worth our while.

Obama and Trinity United Church of Christ

And, of course, there is the further irony: Obama attends an overwhelmingly black Christian church because of the historical segregation of black churches from white. This is something else I was well aware of growing up, having spent my (de)formative years under the influence of Fundamentalist Christian dogma, in a church with a name not so different from Obama's chosen denomination. My church, which was far more prevalent in the South than elsewhere, always had its white and black versions, a feature it shared with Baptists and Methodists and other good-hearted racists. Indeed, the United Church of Christ is a hybrid denomination based historically on white European sources, the Heidelberg Catechism and Lutheran influences (which underwent various Evangelical, Reformed and Congregationalist permutations once they came ashore in the U.S.). Under American practice, of course, Christian churches became as segregated as the military, schools and all public accommodations. The segregation of churches has outlasted Jim Crow and Brown vs. Board of Education, although at this point it's probably lost much of its quality of coercion. Christ's admonition to love one's neighbor was read by such Protestant denominations within the confines of the Dred Scott decision, meaning, I guess, that one should love African-Americans with about 60% of the fervor one lavished on one's white fellow congregants.

There is now a silly game being played in the media called "pin the pastor on the candidate," where Obama, Clinton and McCain are all chastised for attending churches where irrational or anti-American sentiments were expressed by the cleric-in-chief. Under the new rules of guilt by association, the failure to stand up during services and denounce the pastor, or engage him in a fist fight, and then immediately resign from the congregation is taken as proof-positive of complicity in whatever objectionable tirade is issuing from the pulpit. In my own (admittedly minority, nontheistic) view, the whole business of religion is one massive exercise in irrationality. Indeed, that is the ultimate appeal of faith, as a flight from depressing rationality and the dismal conclusions it leads to. A pastor is a kind of facilitator of group therapy where the reigning treatment protocol is the inculcation of hopeful delusions. As long as he's up there talking about things that don't exist anyway, why not throw in, as Reverend Wright did, that the U.S. government experimented with African-Americans by injecting them with syphilis? Or, in the case of Jerry Falwell and Pat Robertson, by blaming the 9-11 attacks on homosexual activity in the United States? Who would even notice? You've got people dying and rising from the dead, water turning to wine, burning bushes holding conversations, and a guy surviving a three-day confinement in the belly of a big fish.

Chris Kelly, who may be the funniest man currently writing in the English language, has done a hilarious send-up of the whole thing by pointing out that Bill O'Reilly currently attends a church where the "head man" is a former Nazi, meaning, of course, that the Pope was in the Hitler Youth (Kelly says that he goes under the "assumed name" of Pope Benedict XVI, but that he was previously known as "Joey Rats"). Why doesn't O'Reilly, each and every mass, get up and storm out of such a blatantly anti-American situation? Didn't Hitler declare war on America in December, 1941? Damn right he did. And although he must have known that Hitler's declaration of war was about as anti-American as you can get, Pope Pius XII actively assisted (well, maybe not actively, but when we're working guilt this way, it's like a game of horse shoes) the Gestapo during the occupation of Rome in rounding up Jewish children for exportation to extermination camps. Catholics are Christians, which implicates Bill & Hillary Clinton, John McCain and George W. Bush as well, who have singularly failed to denounce Joey Rats for his association with Pius. How do they live with themselves, knee-deep in genocide? Does the conferring of a lifetime achievement award (somehow I knew it couldn't be the Irving Thalberg Award) to Louis Farrakahn by the Trinity United Church of Christ cross any lines not already crossed by Bill O'Reilly, who supports The Surge, which supports Bush, who was supported by Hillary's vote for the Iraq War Authorization, who is supported by Bill Clinton, who is supported by Arab Sheikhs, who are in a cabal with the Grand Mufti of Jerusalem, who supported Hitler, thus closing the circle...

This has gotten so complicated. Too bad we can't judge candidates by their own convictions anymore; however, the whole process should be a boon to history teachers.