Living up to our proud national promise is not ‘activism’
Aspen, CO Colorado
It now seems almost certain that at some point in the next few weeks gay couples will be able to get married legally in California.
For the couples involved it will be a wonderful moment, an occasion to celebrate their love. And, for all gay men and women, it will be an occasion that marks an acknowledgment of the essential fact they are, quite simply, human beings.
How sad that it is a momentous step to recognize our shared humanity.
But beyond that, it will be an important moment for our entire country, a moment in which we will move one step closer to realizing the sweeping promises of liberty and equality made more than 200 years ago by the men who founded this nation.
We should note that the standard cry of those who bitterly oppose same-sex marriage (and who still are working to block California from allowing those marriages) is that gay marriage has been forced on an unwilling country by “activist judges.”
Let’s put aside the debate over whether the term “activist judge” actually means anything other than “judge who made a decision I disagree with.” Instead, let’s focus on the fact that over the past few years judges ” both federal and state ” have ruled in favor of gay marriage in a handful of states on the East Coast, the West Coast and even in Nebraska.
But why would that be happening now? Why would this be the moment for those activists to rise up?
It would seem to require a judicial conspiracy ” activist judges secretly getting together to declare, “The time is ripe. Now! Now we shall overturn the will of the people and impose gay marriage on an innocent nation.”
But, in reality, now is the time simply because it is now, after long, slow decades of painful struggle, that gays have finally reached the point at which they can stand up and demand the rights that we have promised to all.
For many years ” even centuries ” homosexuality was repressed both legally and socially. Gays were jailed. And many who were not jailed, quite simply, were destroyed. Public acknowledgment ” or accusation ” of homosexuality could be enough to end a career, ruin a life.
Although people had been struggling against that stigma for years, the gay rights movement really took life in 1969 with an event known as the Stonewall riots. That uprising ” in New York City’s Greenwich Village ” was the moment when gays fought back violently against police discrimination and persecution. Four days of open battle in the streets marked the moment when gay men and women were willing to stand up in public and demand their rights.
Gay Pride and Gay Liberation grew from those days of rage. It marked the first steps for gays to “come out of the closet.”
The decades that followed saw an end to the laws that criminalized private sex acts between consenting adults. And then, little by little (and by no means completely, even now), came the end of discrimination against homosexuals.
And now, finally, gays have reached the point at which they have the confidence and the social standing to rise up and demand the freedoms that our national Constitution and the various state constitutions guarantee them.
And that’s the point.
We are so proud of our “American freedom,” championed by the Declaration of Independence and enshrined in the Constitution. We pat ourselves on the back for those ringing statements of liberty and equality. But now, in demanding the right to marry, gays are challenging us to live up to those declarations.
Now, for the first time, judges are looking seriously at the issues ” and now those judges are quite reasonably ruling that a constitution that guarantees equality must allow same-sex marriage. It isn’t a sudden wave of judicial activism; it is simply the natural result of judges requiring us to live up to our fancy words about freedom.
Remember, it took almost a full century for Thomas Jefferson’s ringing declaration that “all men are created equal” to result in the obvious conclusion that slavery must be outlawed.
Yet, another century down the line, we are grappling with the equally obvious conclusion that, if the state is to sanction something called “marriage,” then that privilege must be extended equally to all. (And, perhaps, we should note in passing that if the state chooses to allow “marriage” to be defined on the basis of religious beliefs, then the state cannot action “marriage” ” any more than it can sanction any other religious rite.)
In the end, the true measure of our freedom and our commitment to equality is not how we treat the majority. Granting rights to the majority is easy, indeed.
As Supreme Court Justice Oliver Wendell Holmes said, “The principle of free speech is not free speech for those who agree with us but freedom for the speech we hate.”
And in that spirit, we must recognize that the Constitution does not say that everyone must approve of same-sex marriage. But if we mean what we say so proudly about freedom and equality, then we must allow that vaunted freedom and equality for everyone to love and marry whom they choose. Our “approval” of their choice is irrelevant.
And those who would amend our Constitution to prohibit that marriage must recognize that they are not “protecting marriage.” They are desecrating the Constitution.
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