November 4th, 2008: a bright day for human rights?  Only partly. By Michael Gentry

The twentieth century marked a watershed in America’s attitudes towards human rights, with the erosion of barriers based upon sex, race and religion and the equalization of so many people.  Future historians may well document the culmination of the movement towards racial equality as the November 4th, 20008 election of Barack Obama to the presidency of the United States.
 
However, those same historians will undoubtedly mark November 4th, 2008 as also being a historic moment in the next human rights struggle still being fought in the United States at the dawn of the twenty-first century – sexual equality. 
 
The shockingly bigoted results of the ballot proposals in California, Arizona, Arkansas and, worst of all, Florida should be a rallying cry for anyone who believes in fundamental human rights. 
 
The telling narrative of how far America has evolved over the twentieth century was highlighted by President-elect Obama’s reference to the 108 year old Ann Nixon Cooper, “born just a generation past slavery; a time when there were no cars on the road or planes in the sky; when someone like her couldn’t vote for two reasons, because she was a woman and because of the color of her skin.”
 
One item that Mr. Obama neglected to mention in his litany of the human rights denied to Ann Nixon Cooper was this: she could not have freely married a man of her choosing in her state of Georgia until 1967. 
 
At the time of the United State Supreme Court’s decision in Loving v Virginia in 1967, sixteen states, including Georgia, had miscegenation laws in place which prohibited inter-racial marriages.  As Chief Justice Warren stated in the Loving decision:
 
“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.  Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”
 
While it is laudable that the United States of America has managed to grow past its divisive and hateful history of racial bigotry, November 4th, 2008 should also be recognized for retrenching another divisive and hateful form of bigotry – homophobia.

 
On November 4th, the electorate of Florida voted to approve a state constitutional amendment that “no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized,” notably denying any Floridian who chooses a same-sex partner not just the right to use the term “marriage” to describe their union, but eliminating their ability to be recognized even under civil unions that do not rely on the “M-word”.
 
Mr. Obama has said in the past that his “job as President is going to be to make sure that the legal rights that have consequences on a day to day basis for loving same sex couples all across the country, that those rights are recognized and enforced” by his White House and Justice Department, we must now see if Mr. Obama’s America of hope and change will include ending all forms of discrimination.
 
During his first term, President-elect Obama will almost certainly have the responsibility to select one, if not more, justices to the United States Supreme Court.  Mr. Obama taught constitutional law for twelve years.  His parents’ 1961 marriage would have been illegal in many States.  Will Mr. Obama consider these fact, and the importance of how his nominees may vote when the Court inevitably considers if marriage, and the entitlements, privileges and protections inherent therein, are constitutional rights that may not be stripped from the citizens of the United States in the “next” Loving v Virginia?
 
Can America move forward as a nation and end the government endorsed discrimination of same-sex couples? 
 
One can only hope that Mr. Obama and his nominees will answer ‘Yes, We Can’.
 
 
 

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11 Responses to November 4th, 2008: a bright day for human rights?  Only partly. By Michael Gentry

  1. Jim says:

    I voted NO on Prop 8 here in California because I don’t believe that the California constitution should be used to legislate what is a moral issue. Unlike the Florida proposition, Prop 8 doesn’t speak to civil unions. Had it done so in the way the Florida propsition did, I would have been doubly opposed to it.

    If we recognize “marriage” in the traditional sense and we deny this to homosexual couples without granting their relationship legal recognition under “civil unions”, then we are truly discriminating. If we allow civil unions, on the other hand, then the discrimination question is more complicated.

    Society does have a very real interest in the moral behavior of its citizens. The moral fabric of a society certainly can change with time so that what was once considered immoral can become moral.

    When you say: “November 4th, 2008 should also be recognized for retrenching another divisive and hateful form of bigotry – homophobia.” you’re denying that many people may have voted on moral grounds which has nothing necessarily to do with bigotry or homophobia. Your statement prejudges the motives of those who voted in favor of these propositions.

    You prefaced the above quote with Earl Warren’s statement in the Loving case. I have to point out that the words “marry” and “marriage” were used there in the traditional sense. In fact, when Justice Warren said “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” it is clear he was referring to marriage between a man and a woman. Given the times, had the case involved a same sex couple one could conclude that he might not have made this statement and he may have ruled differently.

    I’m very much in favor of creating a society that is tolerant of individual behavior as long as it is not harmful or destructive. Being opposed to something on moral grounds and being tolerant of the same thing are not mutually exclusive positions.

    I’m personally struggling with the question of how marriage should be defined. I recognize that words and how they are used matters when it comes to discrimination. So if the traditional definition of marriage is broadened to include same sex couples, this could lead over time to less discrimination – a very good thing.

    However, there is a difference between the type of relationship that is involved in the current traditional definition of marriage and a relationship between same sex couples. The difference does not vanish by broadening the definition of marriage.

    I have not convinced myself that broadening the definition of marriage will be more effective at lessening discrimination or promoting tolerance than recognizing the differences and protecting the legal rights of same sex couples through civil unions. Over time this can also lead to the same end.
    Jim

  2. Barbara says:

    Jim, you say “there is a difference between the type of relationship that is involved in the current traditional definition of marriage and a relationship between same sex couples.”

    I’d be interested to know more specifically what you see that difference to be, because I only discern a religious and legal bias based on a tradition of intolerance.

    Thanks!

  3. Jim says:

    Hi Barbara (T?).

    The difference is summed up in the term “same sex couple”. There is no value judgement in that term and it does not imply that the relationship between the people in the relationship is not committed and loving nor that they are could not be good parents.

    Should we not recognize differences? I ask again how denying differences leads to better understanding. On the contrary, I think that denying differences exist can lead to less understanding.

    If civil unions provide same sex couples with all of the same legal rights as marriage provides hetrosexual couples does that not eliminate the legal bias?

    Saying that people who want to retain the traditional definition of marriage while providing all legal protections for same sex couples are intolerant, bigoted, and/or homophobes is just not true.

    This is the reason I posted my comments to Michael Gentry. He accused those who voted for Prop 8 of being bigoted and homophobes. Some are undoubtedly that but it is not clear that a majority are or that even a large percentage of them are.

    Jim

  4. Barbara says:

    Separate but equal . . .

  5. Barbara says:

    oh, and meant to say, yep, Barbara T. how’re you doing? (;>

  6. Jim says:

    Hi Barbara – I’m doing great. Enjoying retirement and photography.

    Jim

  7. Janice says:

    Hi Jim and Barbara:

    Jim, I want to start by giving you my sincere thanks for voting no on prop. 8. That said, I do want to address your comments about marriage vs. civil unions. I feel it relevant to tell you I am a lesbian, in a committed relationship for the past 9 years. My beloved and I are registered in this state as domestic partners. Granted, our dp status grants us many of the state rights as would legal marriage. But to say it is the equivalent is not true legally or socially. We are not entitled to federal benefits (i.e. Social Security and military benefits). We are also only legally recognized as a couple in California. Unlike a married couple we cannot move out of state and expect the same rights. But, moreso than even the legal issue, is the unfairness of not being entitled to have our committment to each other called marriage. To be told that we are not entitled to marriage and all the legal and social status that it entails simply because we are of the same gender is to deny us our full status as citizens of this country. It is to designate us as less worthy than our heterosexual counterparts in a meaningful way; it is to brand us “second class citizens”. It is, by it’s very nature, legally sanctioned homophobia. Separate but equal (as my good friend Barbara said). Definitely separate. Definitely not equal in legal OR social status. Thanks for “listening”.

    Janice

  8. Jim says:

    Hello Janice,

    Thank you for that information.

    This issue is very difficult for many people. From what I observe the good news is the younger generation that is now working it way into the political arena will decide it in favor of gay and lesbian couples. But even if that happens tomorrow, there may be a battle not unlike the abortion battle that will have to be fought for years.

    Just for the record, that doesn’t bother me in the slightest. I argued the opposite side of Michael Gentry’s post because I don’t believe that anyone who voted FOR Prop 8 is automatically bigoted or a homophobe.

    I do try to think about both sides of any issue and I think seriously. There is a lot to be gained from that endeavor. In my first post I noted that I’m having to struggle with the question of redefining marriage. Subsequent thought and discussion has lead me to think about a quote we should all know.

    “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.”

    It is the last four words of that quote and the capitalizations that I’m thinking about right now.

    Jim

  9. Jim says:

    Hi Janice,

    Let me clarify one thing. In the 3rd paragraph I said “Just for the record, that doesn’t bother me in the slightest. ”

    Bad editing on my part makes that sound like I don’t mind the battle over this question taking years. I had inserted the last sentence in paragraph 2 after writing the 3rd paragraph.

    What I meant to say is that having Prop 8 type legislations defeated because of changing social values does not bother me in the slightest.

    I hope that all makes sense. :)

    Jim

  10. George says:

    Hey Jim:

    I just wanted to point out one aspect of the “it’s really a different thing” argument. That sounds so like the same argument that was standard back when laws against interracial marriage were being defended. There are few differences more obvious than race. I mean, blacks married blacks, asians asians, hispanics hispanics, etc. The only differences tolerated was the one that couldn’t be violated merely on the basis of personal choice: men could only marry women and vice versa.

    Now we’ve admitted that who you choose for a life partner ought not be limited by race lines. Why should it be limited by gender lines?

    The whole idea of marriage–at least the one I subscribe too–is that two is a better number than one. Life is a safer place with a partner than without one. Virtually everything is easier, or, at least, cheaper. If two people choose to enter into a commitment, there needs to be an understanding about how the thing is to happen–what privileges you get for agreeing to the bond–what responsibilities come with those privileges–how the bond can be broken, if broken it comes to being–etc. Regarding gender, you *had* to choose a partner of a different one. Why?

    These, it seems to me, are issues that everyone would benefit by having a legal umbrella under which to operate, independent of their personal choices relative to who that partner might be. Building different umbrellas based on how one makes the personal choice of a partner just seems to me to be wrong. It’s clearly a value judgment placed on what that choice is. It’s an attempt to impose a cultural imperative on what is clearly a personal choice. It’s the opposite of a free society.

    Interestingly, it even seems to me that even how many partners one person can enter into such an agreement with ought to be a personal choice, and, in this sense the Mormon’s role in the passage of Prop 8 seems ironic. The contract twixt many, versus two, obviously complicates things, so it’s unclear to me how it might be handled, and the whole thing is tainted by the obvious implications re. using marriage as a means of producing a more powerful base, discussed below. But that is, perhaps, another topic.

    Of course, much of the resistance to gay marriages is based on a different concept of “the whole idea of marriage.” For institutions that wield power, there is a strong impulse to build that power via procreation. And there are few easier methods of building a group’s power. And few that remain. Anti-masturbation taboos are pretty much things of the past. So, too, are the prohibitions against any use of contraceptives, save for vestiges that remain, mostly, as theoretical rules supported at the highest levels of churches, and largely ignored by the masses. Anti-abortion rules still cling in, but their time seems to me to be limited, at least for awhile–at least in this country.

    That the method of gaining power via encouraging procreation has to be supplanted by some other means seems to me to be obvious. I personally would like to see a group grow via active encouragement of adoption, but whether that will ever find purchase or not seems to rely largely on whether the maternal urge can be met without the physiological phenomenon of maternity. Ahhh, the mysteries that turn on such questions.

    Population growth is the most insidious problem confronting humanity. We’ve got to find an alternative quickly, for we are already quite far out on the exponential growth curve that traces the destruction of our world. Gay marriages are, really, a far better fit to addressing that problem than are straight ones–simple fact. Yet we discourage them–and worse. What *are* we thinking?

    George

  11. Janice says:

    Wow. Good commentary, Jim and George. I appreciate the thought that went into both of your posts. Jim, I too don’t see anything productive in calling people homophobes or bigots. I do recognize that many people’s religions and/or family upbringing will never allow them to accept homosexuality. I am saddened by that, but, unless I want to give myself a concusion beating my head against a wall, I need to accept that some people in this world will never accept someone like me. Their fear, misunderstanding, dislike, or even replusion about homosexuality is their personal journey. What I find outrageous is that these personal (and in a vast majority of cases, RELIGIOUS) beliefs can be used as a political tool to legalize discrimination against gay people and that our very constitution is the format for this discrimination. We supposedly have separation of church and state in this country. Freedom of religion has been interpreted to also mean freedom from religion. Changes in our constitution have historically been to expand rights, not to take them away. I don’t claim to be a political science scholar, but I thought that one purpose of our constitution was to protect minorities from the majority. If a particular church does not want to marry my partner and I, fine, I can respect that. But to exclude us from the right to civil marriage, like everyone else, is outrageous. That “the majority” should be allowed to determine the rights of “the minority” is perposterous. Where would we be as a multi-cultural society if the majority had been able to vote, in 1964, on the civil rights act. Where would we be if men were able to vote in 1920 on whether or not women have the right to vote? The gay marriage issue is no different and someday, children will be shocked that we were not allowed to marry, just as children today are shocked about the law against interracial marriage (and so many other laws that separated people based on skin color) or shocked that their great grandmothers were not allowed to vote. I realize, Jim and George, that you and we are essentially on the same page on this one and that I am preaching to the choir. Still, once I start “preaching”, it’s hard to stop. Peace be with you.

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