Suspect

Last week a judge in California reached the conclusion that the law of the land should not accommodate the millions of voters in that state who used their ballots to promote their belief that two people with the same reproductive equipment should not be allowed to marry each other. Somehow, I found the response to the ruling more sickening than the passage of Proposition 8. After listening to the commentary, there are so many things I’m tempted to write about. I’d love to write about the boy in Portland who’s been missing for two months now, and hold up his utterly incompetent parents (there are four of them at the moment) as an example of why it’s a crapshoot to let heterosexuals have children – not because I believe that, of course, but because it’s exactly what the family folks would be broadcasting if half of what we’ve heard about so far were to happen under the watch of two gay parents, and I am starting to think it’s time to fight fire with fire. I’d like to write about the right-wing talk show hostess who bellowed that gays shouldn’t be allowed to marry because the parts don’t fit, an opinion she shares even with her gay friends. Either her gay friends are warped beyond recognition, or she has the most elastic definition of friendship on the planet. Speaking of parts, I wanted to write about how physically repulsive I find a guy I know who is convinced that 80 percent of the gay men he knows have “hit on” him. I wanted to write about that not to be mean – well, okay, maybe a little – but to clarify my position: if I were forced to make a choice between pleasuring him or his wife, it wouldn’t take me a fraction of a second to make up my mind to eat out.

Instead, though, I decided to do something more constructive. I am increasingly confused about all the legal talk that commences when the gay marriage issue comes up, so I downloaded the U.S. Constitution, and then I read it. It’s a beautiful document, I think, one that verges on elegance. But I do not think it is going to save the day for those of us who think people should be allowed to marry the person they love.

The first problem, I think, is Section 1 of the Fourteenth Amendment, which says “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

To me, four words bubble up to the top of that stew of double- and triple-speak: due process of law. What’s that? An election where the citizens vote on who is entitled – or not – to what? Or a town meeting down at the coliseum, where the applause meter determines whether the guy in the field gets mauled to death by the beasts? Or when a guy in a robe writes a scathing indictment on what he believes is the unconstitutionality of having one set of rules for male-female couples and another for the rest of us? The original purpose of the amendment was to manage and manipulate the then-nascent freedom of the newly liberated slaves. It draws on the same brand of slick that’s been elevated by people like Barack Obama and Bill Clinton and scores more “moderate” Democrats: it sounds great, until you do a little digging. Obama’s position on the whole thing, if you can call it that, is straight out of the separate-but-equal playbook. Ironic, ain’t it? Our first black president.

More ominous, though, is the quiet but shrewd shop steward of constitutional law, the suspect classification doctrine. The suspect part of it comes into play when laws, or proposed laws, call out individuals, or groups of individuals, based on race, national origin, alienage or religious affiliation. In these cases, the supreme court holds these laws to a stricter degree of scrutiny by shifting the burden of proof to the government, which is required to prove that the law is indeed constitutional. All of which leads, of course, to the arena of civil rights laws, which make it illegal to discriminate on the basis of race, color, religion, sex, age, handicap or national origin.

You’ll notice, no doubt, that there’s nothing in there about sexual orientation. That would require a precedent. And given the fact that we have a supreme court that believes corporations should have the same rights as individuals and a president who appears to think there are some good policy cues to be taken from the age of racial segregation, I’m not holding my breath.