Is Gay Marriage Legal?…(read more)

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Aug 202010

U.S. District Judge Vaughn Walker, a gay federal judge in California just over turned a ban on gay marriage that was passed by a citizens referendum where seven million citizens approved  the ban. You can and should ask where is the democracy in this, but then again it is becoming increasingly obvious that America is moving away from any democracy it had.

The rational the federal judge had is that the ban on gay marriage creates discrimination, but does it? Do gay people have a right to be married if they so choose? Does the Constitution protect them in this matter? Well, since a federal judge overturned a ban on it, the next step is the appeals court, but it’s a sure thing that this issue will wind up in front of the Supreme Court.

But does the Supreme Court  have the authority to rule on the issue of gay marriage? NO. Because the Constitution says nothing about marriage-either gay or straight, it also says nothing about sexual matters or differing sexual orientations. The closest to the subject of marriage it gets to is to proclaim the right of  “Freedom of Religion”, and since religions often perform marriages, this takes care of the issue of  marriage as far as the signers of the Constitution mattered, And since most religions reject gay marriage, you may think that this settles the question, but it does not, because the Constitution states in the Tenth Amendment that:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or the people”

Therefore, it is the States and the People who have the legal right to determine the issue of gay marriage, and since there are now a total of thirty states that have banned gay marriage and since this is a majority of states, this appears to settle the issue. So, as far as American law is concerned, legal gay marriage can not be a national law, but it most likely can remain legal in the states that have legalized it due to the principal of “States Rights” (that is if the states have any rights left at all). But it should be noted that despite the fact that the Constitution bars judges from ruling on this issue, the courts have illegally ruled on this issue anyway, as well as other issues involving sex, such as sodomy  and at one time even made marriage between different races illegal. This is a matter of the courts illegally over-extending their jurisdiction.

However, if the Supreme Court overrules all bans on gay marriage and if everybody goes along with an illegal action like this, then the opponents of gay marriage will have only one option left, that is to seek a Constitutional Amendment to ban gay marriage. This needs three-quarters of all states to approve the amendment, if this succeeds then gay marriage will be banned nationwide.

However, there is one part of the “Declaration of Independence” that may give gay people the right of marriage and that is the part that says all people have a right to:

“Life, Liberty and the Pursuit of Happiness”

It’s the part that says “Pursuit of Happiness” that may give gay people a right to marriage, since if marriage is what gives gay people happiness, then they have a right to legal marriage. But the problem with this is that straight people say that marriage has been and remains a sacred part of their religions as it has been for about 2,000 years. So the question here is do you give gay people the happiness of marriage by depriving straight people of the satisfaction and happiness of having their religions traditions respected by maintaining them as they have been for 2,000 years. The only legal way to resolve this is by public debates and voter referendums.

A question that must be raised here is; is gay marriage necessary for gay people to achieve happiness? This is questionable because throughout history there have been gay people and they have never demanded marriage as a condition of their happiness. Even as far back as ancient Rome and ancient Greece where gay people were completely accepted by these societies; but even in these societies gay people never demanded the right to marriage. So why do gay people now demand marriage as necessary for their happiness. May I guess that the reason for this may be their desire to feel accepted in society, to be like everybody else. This is understandable, but the way to social acceptance is not by forcing your way into the straight world and not  respecting the traditions and values of straight people. The way to social acceptance is by  respecting other peoples values and having other people recognizing your humanity. I mean a gay man in a wedding gown in a church is just as out of place as a straight man dressed in pink dancing in a gay bar. These situations just do not sit right in today’s world, but then again, working towards acceptance as mentioned is a long and slow process that this generation may not see, but it can be real acceptance, that is, if this is what gay people really want. But then again, there are gay people who seem to want to have nothing to do with the straight world, they live in their own neighborhoods and frequent social clubs and bars that are mainly attended by other gay people, so the question of “acceptance” remains an open question.

Another question must be raised here; since gay people have their own distinct culture and traditions, perhaps they should establish their own marriage traditions so that their own culture can be celebrated, but as stated, respecting other religeons is an important factor in this. So, Gay people would be better off using the term “Civil Union” instead of marriage so as to respect straight people and recognize that “Marriage” is the property of the Church. Such civil unions can have rules and ceremonies that conform to the gay life style and so can be enriching to their culture. If such civil unions can be recognized by the state is another question. It would have to distinguish gay civil unions as distinct from straight marriage and have the approval of the entire gay community. It must include ceremonies performed by respected leaders of the gay community for gay people only. but not performed in a church that was established by other religions (this is where the problems come from), but in important community centers that matter to gay people. Maybe this would be the “coming out into the world” that gay people are searching for with their own culture and established traditions. This would establish their place with humanity. And, isn’t this really what marriage or civil unions are all about, recognition and acceptance by a persons own respected community?

If gay civil unions become an accepted institution within the gay community, it would be much harder for the government to reject it; because it would be a contract between two induviduals who have pledged loyality to each other in a union that was witnessed by other people and met certain requirements within the gay cjommunity that would be separate from other religious institutions.

I must state that the part of this whole issue that is the most disturbing is the way the courts have, without legal right, stepped into social issues that the Constitution clearly establishes it is not their right. It is the people and the states that have the Constitutional right and responsibility to decide what defines America and its traditions, not the courts; But it is clear that the courts have stepped in and are illegally deciding what is the definition of America and its traditions. The result of this is that we are moving toward a national government that will decide everything for the citizens, therefore ending democracy in America.

To realize the effect of this, lets take another look at that famous phrase from the Declaration of Independence:

“Life, Liberty and the pursuit of Happiness”

On the issue of “Life”, it has to be realized that since the government has taken over health care and so may ration health care, and so they may decide when a person is too sick or too old to justify the cost of continuing treatment and may also fund abortion. Thus, the people have lost a measure of their control of “Life”.

As for “Liberty”. If the courts decide what is the social norm and what American traditions are; then Americans have lost an important measure of their “Liberty”.

With “Life” and “Liberty” so compromised by the government; the phrase “Pursuit of Happiness” is meaningless. You may as well run the Constitution and the Declaration of Independence through a shredder and use the shreds as packing material to pack your things and move to another country where you may have better luck.

Or, better yet: put the courts back in their place and demand that the “People” and the “States” decide on issues of social matters and what the traditions of America should be.

Jose Lugo