A Constitutional Tipping Point on Marriage
- Sep 12, 2007 - 17
A county judge in Des Moines, Iowa, of all places, ruled last month that the state law allowing marriage only between a man and a woman violates the constitutional rights of due process and equal protection.
This isn’t New York or Massachusetts or California, mind you—this is our nation’s heartland.
Iowa voters, with their own defense of marriage act in place for over a decade, thought they had settled the issue of same-sex marriage. While the judge’s decision has now been stayed, this action reminds us that the institution of marriage is still under constant threat from the whims of just one obscure judge.
Anyone paying attention to the early-developing race for the White House knows that Iowa—with its first-in-the-nation presidential caucus—is crawling with aspirants for the Oval Office. Perhaps this decision by an Iowa judge will help place this issue front-and-center in the minds of voters across the nation and thus, the presidential candidates.
While some opponents of same-sex marriage argue that this is a state issue, I believe at its heart it is a national issue. In fact, I believe events in American history support this position.
I suspect that Abraham Lincoln was a staunch Federalist. While he believed most issues should be decided at the state level, there are some issues that are so compelling and basic (“first principles”) that they have to be decided at the federal level. Lincoln understood the moral dilemma that would unfold if each state was able to decide for itself whether it would be “slave” or “free.”
In a speech delivered June 17, 1858—before he became president—Lincoln said the issue of slavery was a “crisis” that the nation could not ignore.
Quoting the Bible, he said, “A house divided against itself cannot stand” (Matt. 12:25).
“I believe this government cannot endure permanently half slave and half free,” Lincoln continued. “I do not expect the Union to be dissolved; I do not expect the house to fall; but I do expect it will cease to be divided. It will become all one thing, or all the other. Either the opponents of slavery will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction, or its advocates will push it forward till it shall become alike lawful in all the States, old as well as new, North as well as South.”
I have ancestors who fought for the Confederacy, as well as ancestors who fought for the Union, and I appreciate the fact that the Civil War was more complicated than just the issue of slavery. There are people who assert the war was about states’ rights and not about slavery. What do you think was the precipitating cause that made people talk about states’ rights? It was some people’s belief that it was a state’s right to allow some people to own other people. The fact is, without the issue of slavery, there never would have been a Civil War.
The slavery analogy is apt when it comes to the marriage issue. America’s families—and the culture at large—cannot survive as a union of states with half embracing same-sex marriage and half accepting only traditional marriage. The U.S. government will not disintegrate, but eventually the nation will have one definition of marriage binding us all.
Lincoln gave his speech in the same year that the infamous Dred Scott decision was decided by the Supreme Court. The sensibilities of many Americans of that day were outraged by this immoral decision that said, for the purposes of law, that slaves were not people, but property.
The Dred Scott decision was not what you would call a close decision. The 7-2 verdict said the right to own slaves was a fundamentally guaranteed constitutional right that could not be limited by the states.
Lincoln, in an 1860 address, pointed out that the slaveholders would not be content to continue owning slaves in the states where they held them. They wanted to force everyone in the country to acknowledge their right to have slaves anywhere in the United States. In other words, they wanted to make slavery legal in every state of the union.
So less than six months after the end of the Civil War, what did the people of the United States do? They adopted the Thirteenth Amendment to the Constitution, which said once and for all that “neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.”
Slavery was outlawed in the federal Constitution. It was not going to be an issue decided by each state.
I respect the Constitution, and I don’t believe it should be amended unless it is absolutely necessary. We have reached the point regarding marriage that we once reached regarding slavery. Rulings like this one in Iowa reveal the urgent need for a federal Marriage Protection Amendment.
At least one person has said to me that while banning slavery expanded personal liberty, prohibiting same-sex marriage would contract or limit personal liberty. Yet while the ban on slavery expanded liberty for the slaves, it inhibited and constricted liberty for the slaveholders.
In fact, the emancipation of the 3 million African-Americans held in involuntary servitude until the end of the Civil War was the largest property expropriation without any kind of indemnity or compensation to the slaveholders that has taken place anywhere in the Western world in modern history.
No longer was an American free to own another human being. Liberty was secured for the slaves and constricted for slaveholders. Never has justice been better served.
Forbidding same-sex couples from marrying may be a constriction of their liberty, but more importantly, it is an expansion of the people’s liberty to define what constitutes marriage.
Whether or not the same-sex marriage issue becomes a topic of discussion among those running for president depends upon all of us. If we make the definition of marriage as between a man and a woman an issue, it will become an issue among the crowd of candidates reaching for the golden ring.
Further Learning
Learn more about: Family, Marriage, Sexual Purity, Homosexuality, Citizenship, National, Religious Liberty
17 comments (post your own) feed
1 On Sep 12th, 2007, at 10:54am, Richard Nations wrote:
Dr. Land
We are doing our dead level best to get this crazy ruling overturned and get back to “heartland values” here in the heartland. This judge is up for re-election in 2010 and you can bet conservatives will be out for blood (and there are many here). In the meantime, we are hoping the higher courts will overturn this thing and invalidate the couple of same-sex marriages that were performed by a Unitarian minister last week.
By the way, your photo must have been of a Nebraska farm. We grow corn in Iowa!
Richard Nations
publications editor
The Iowa Baptist
2 On Sep 12th, 2007, at 12:36pm, Dan Valdes wrote:
I find it very interesting that the SBC would elect to compare gay marriage issue to slavery and state’s rights.
The schism over slavery was a big part of the SBC birth in 1845 from three originating Baptist groups. The SBC was born of the belief that slavery was biblically sanctioned. It wasn’t until 150 years later in 1995 that they finally apologized for their racist beginnings.
Now they have matured and naturally changed such an onerous position.
When will they mature on this issue? I pray it doesn’t take them another 150 years to open their hearts and minds. Gay people are just like everyone else and this form of religious bigotry will soon fade into the tarnished pages of history too.
3 On Sep 12th, 2007, at 9:59pm, Helen P wrote:
One could wish that we could return to sanity. I suffer from culture shock in these United States. I cannot understand why same sex marriage should even be considered. It is hard to believe we have come accept same sex constitute a family. It is a mockery of the sacredness God gave to marriage. It is not what God said and He knows best for societies. When our forefathers wrote the constitution, I don’t think they ever thought we would come to this. The First Amendment, our freedom of speech, to allow people to print and show filth was not even in their thinking. They had a clearer view of right than people do today. Some things are just wrong. We can never go to sleep, when we do, more of God’s goodness is taken away and more of Satan’s anything evil goes is before us.
4 On Sep 13th, 2007, at 12:02am, Jerry wrote:
Governor Mike Huckabee is the only Presidential Candidate who has already signed a pledge to make a U. S. Constitutional Amendment forbidding same-sex marriage and making it legal for only one man and one woman to be married. Governor Romney now favors the same, but I haven’t seen him sign a pledge. A group of evangelical Leaders are compromising the Word with Senator Fred Thompson, who has more campaign funds and they think more electable. The problem with Senator Thompson is his pledge to pass a Constitutional Amendment on marriage that allows legal marriage to be defined state-by-state, which would be no different than having judges allow same-sex marriage. The Democratic Candidates are in favor of same-sex unions or make it a state-by-state issue. Some grass root Christians are committed uncompromisingly to Christ and His Holy Word. They have vowed not to vote for anyone who allows same-sex marriage even if they lose their vote for the Presidential candidate.
5 On Sep 13th, 2007, at 12:01pm, Roger WInters wrote:
My comments must be 1000 characters, but I have more to say, so I post them in pieces. I hope this is acceptable.
It is clear you have concluded - and almost never question - that legal marriages for same-sex couples will harm either the “institution of marriage” (an abstraction - not one couple enters the institution of marriage, they enter THEIR OWN marriage) or will negatively impact marriages of heterosexual couples. I believe you think this in large part because you do not strictly distinguish the privileged legal relationship given to those who are married by the civil authority from the meaning given to “marriage” by you applying your religious doctrines. Becoming legally next of kin through civil, licensed marriage protects any couple in hundreds of ways. You don’t even begin to see that there is a huge Constitutional question of equal protection of the laws here. Your religious focus clouds your ability to see the real constitutional issues.
6 On Sep 13th, 2007, at 12:10pm, Roger Winters wrote:
How is “freedom to define marriage” a right, except one seeking to exclude and punish people who do not believe as you do about their homosexuality? Who owns this “freedom to define marriage?” Baptists? All Christians? Only those who vote? The majority! But majority (the greater number prevails) is nothing, morally, but “might makes right!” It is a decision-making principle, not a basis of right. Since majority views change, if majority rule is the basis of right, then right is always changing. (Similarly, “the will of the people” always changes, with each vote, poll, or guess by whoever’s pretending to know what it is!)
I believe hostility to homosexuality so blinds you that you cannot think clearly on this issue. Indeed, I believe your leaders want you to choose not to think clearly and logically, because that is the only way you can give your church standing to object to the free choices by otherwise qualified adults to marry one another even if of the same sex.
7 On Sep 13th, 2007, at 12:23pm, Roger Winters wrote:
You have opposed mixed-race marriages (laws punished those who married someone of a different race) - Loving v. Virginia in 1967 is a parallel issue.
(Opponents of mixed-race marriages don’t speak up now, after the Loving case and social changes in America. My [non-Baptist] father often preached we would never get to the Moon because God had set the limits of our habitation as the Earth – you can find the Scriptural citation for that. After the Moon landing, Dad never made that point in his sermons again. He never said he had been wrong – he just stopped saying it.)
The marriage of a same sex couple in no way affects the marriage of any other couple, just as in religion, your ability to believe as you choose does not prevent me from having a similar ability. (Let’s not get into absurdities like - what if you believe it’s okay to kill babies? Certain conduct is proscribed by law for good reason based in general consensus and a clear distinction between belief and action.)
8 On Sep 13th, 2007, at 12:29pm, Roger Winters wrote:
This matter is like discussing freedom of religion, so what Jefferson observed in Notes on Virginia in 1782 applies:
“...it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg.”
A marriage by a same sex couple neither does others harm nor prevents them from the free exercise of their beliefs on how marriages should be. The legal content of marriage is the same for non-Baptists and Baptists. Legal marriage - allowed for imprisoned criminals - for anyone who are of opposite sexes and otherwise qualified. Legal marriage does not address love, children, families, or anything but establishing the privileged kinship relationship for the couple. While marital status is used in relation to children, there is no requirement to have children, to have sex, or even be in love to execute a marriage license. The legal side is morally neutral - with typical exclusions: age, insanity, no brother-sister-cousin marriages.
9 On Sep 13th, 2007, at 12:35pm, Roger Winters wrote:
Finally… Try thinking about this issue again by focusing solely on the legal content of marriage in America. It is there that equality should be mandated and the emotionally-based, religion-based arguments apply only when you explain to other Baptists that the church doctrine requires that they should not marry persons of the same sex (even if other people do so because they believe differently).
Your wish to exclude same-sex couples from the protections of the law by changing the Constitution (and thereby getting that pesky “equality” idea out of the way) is immoral, I believe, and perpetuates an evil against many of your fellow citizens. I hope these considerations lead you to think again and I trust that if you really THINK again, you will reach a different conclusion.
Best wishes for all of you.
10 On Sep 13th, 2007, at 6:46pm, Mitch wrote:
This is a product of the Church not teaching their children in the way they should go. There isn’t any moral truths and their opinions are from a non-christian base. I feel that the Church should find a way to teach children at a low cost through a foundation or trust concept so as to not have our children taught this moral corruption. I feel that we some times come across as being against the Homosexual but in reality it’s love that wants us not to see them go to HELL. The individual that said it’s the SBC that separated because of slavery should also note that it’s also northern Christians who were the abolitionist. The SBC should be an example of religion without faith.
Marriage is a church sermony and should have benefits only within the church.
11 On Sep 13th, 2007, at 10:31pm, Greg Z wrote:
I think the biggest test of morality is being able to accept someone who is different than you because you share one important thing in common, humanity. I once had a conversation with a catholic acquaintance that believes homosexuality is a sin. However, she supports marriage equality. The reason is because she thinks it is the moral thing to accept all and to show her acceptance and respect. She feels that she can do this without compromising her own personal belief on the matter. Therefore, I believe you can be against homosexuality but for gay marriage. Do you think God will see it as sin? Or perhaps the ultimate acceptance of you fellow man? Gay and straight humans are humans and should be treated with the same love and respect. Thats what I believe is moral and thats what I believe the Judeo-Christian tradition tells us. Voting for marriage equality isn’t a vote for homosexuality, its a vote for humanity.
12 On Sep 14th, 2007, at 9:15pm, Harry Rockefeller wrote:
Baptists have so divorced legal authority from the other social biblical authorities of church and family that there is no clear thinking. I see this as a fault of biblical education. In this vacuum even Baptists pick up believing “the futility of their own mind”. Roger Winters has many good points but the one he neglects to write about is where good and evil come from. He is right in accusing the Baptists of their own brand of “baptised” humanism but he neglects to see his own borrowed-from-religion presupposition that good and evil even exist, i.e., the basis of his own humanism. I would encourage the Baptists to really exegete the four God-ordained spheres of human authority: civil, church, family, and self. Marriage touches on every one of these.
13 On Sep 17th, 2007, at 9:06am, Dan Valdes wrote:
Mitch says..."This is a product of the Church not teaching their children in the way they should go.” ...
but if by that you mean gay people are that product, you are most incorrect sir.
Gay people are born independently of any teaching, academic, theological or otherwise. You can’t teach someone to not be gay by “catching” them at some critical certain age. That is preposterous.
We are born gay, live gay and die gay. Happily.
There is a fundamental myopic misunderstanding of human sexuality by many within the church.
14 On Sep 17th, 2007, at 4:18pm, Greg Zahner wrote:
What makes homosexuality so different from other targeted groups like people of color, women, the poor, and those of minority faiths? For one gay children are the products of straight parents. You generally share race, class, and religion with your parents and sex with one of them. Families are our biggest support system in life and for many gay children they are denied this basic safety net. You teach us that we are different, inferior. You bombard us with media messages that demonize us, or we get “liberal” media messages that turn us into clowns or people only obsessed with sex. . . “gay sex.” These aren’t accurate messages. That is prejudice.
All my life marriage was a right. You hear about marriage starting at a young age from stories and Disney movies. Marriage is glorified, something to be excited about. When I realized I was gay I also realized that to many Americans I am also inferior and will not be able to enjoy the same basic rights. I am not allowed to get married.
15 On Sep 17th, 2007, at 4:24pm, Greg Zahner wrote:
Marriage is based on love. I have never heard a convincing argument that suggested non-heterosexual people are incapable of love. So if we can love, then we SHOULD be able to marry. Your religious beliefs are your own, they are personal to you. No one is forcing a Church to perform gay marriages if they don’t want to. Marriage, like religious beliefs are a personal matter to be decided individually. Allow marriage for all in order to promote equality and eliminate another oppressive barrier that has become institutionalized in our society.
To me oppression is whats really EVIL
16 On Sep 18th, 2007, at 7:01pm, Roger Winters wrote:
Responding to #10 where the concern is expressed that homosexuals would go to HELL if folks didn’t somehow intervene with us. Here’s a great example of the “humane” basis of persecution. Here is the reason “The Golden Rule” isn’t “golden” at all, but blood red: “Do unto others as you would have them do unto you,” sounds good on the surface, but if your reasoning is to save non-believers (that is, people who CHOOSE to believe differently from your religion) from your idea of HELL, then you can justify almost any persecution (try the Inquisition) in the name of “doing good.” You’d say, “If I were in danger of going to HELL, then I’d want you to torture me hideously until I recant. This is to force others to believe as you do. HELL is YOUR myth. Kindly keep it to yourself. Don’t visit it on others. You are decidedly NOT GOD!
17 On Sep 19th, 2007, at 9:53am, Dan Valdes wrote:
Mitch says… “I feel that we some times come across as being against the Homosexual but in reality it’s love that wants us not to see them go to HELL.”
I would think that being FOR me includes being for a hate crimes law, employment non-discrimination, marriage equality and equal status within the church.
Somehow his cocksure sentiment that I am going to HELL doesn’t jive with his expression of agape.
If more people focused only on their own salvation and left the rest to God, I suspect there would be a greater harmony in the church. Why do I have to be just like he is in order for grace to abound?