Discrimination and the Constitution

My son David's wife e-mailed me after reading Onward, Moderate Christian Soldiers by former Senator John Danforth in the 6/17/05 NY Times. This is my response:

Catherine,

It was so nice to hear from you. Thanks for your comments on the article.

from your e-mail: "I agree with the article as it states that in the Gospels love takes precedence when it conflicts with laws, but I don't think you can stretch that to say that as long as love is present...”anything goes.” I disagree with the author’s statement that “for us, the only absolute standard of behavior is the commandment to love our neighbors as ourselves.” How can he mean that? We as sinners are forgiven for our wrongs and are not condemned by God because of Jesus’ death on the cross, but there are standards of behavior. There are still rights and wrongs."

"We hold these truths to be self evident, that all men are created equal. That they are endowed by their Creator with certain inalienable rights. That among these are life, liberty and the pursuit of happiness."

Yet our liberty is restrained when it interferes with the liberty of others. We put a thief in jail because we "love our neighbors" and don't want their property stolen.

We discipline our children for their misbehavior so that they might grow up to do right not wrong by their neighbors. Yet we recall that to discipline means to teach, not to punish. We discipline out of love, not anger. We discipline the thief hoping he'll change his behavior.

If our behavior harms no one else, then we are at liberty to do it. As Jefferson said, "If it doesn't break my leg or pick my pocket, then it's not the government's business."

So all our laws are (or should be) grounded on the love thy neighbor principle since they protect our neighbors from loss or harm.

From your e-mail: "Clearly, the article is focused on the issues of faith and political agendas. I have some more thinking to do to gather my arms around the whole issues....as I'm not the most politically savvy. However, I do believe that Christian politicians have an obligation to God to do all in their power to preserve the moral state of our society."

Christians, like all citizens, have the right and duty to express their opinions regarding public policy. Yet all laws are subject to constitutional limits.

Our Constitution grants certain powers to the government. The 9th and 14th amendments remind us that all other rights are retained by the people. If a conflict arises concerning a law which denies rights to a specific class of people, then it is up to the state to prove that there is a rational basic for the law in support of a compelling state interest. Does it prevent harm or loss to other members of the public in some way?

Religions are a source of moral instructions. Thou shalt not kill, thou shalt not steal fit into our constitutional requirements since they are designed to prevent harm or loss to others. The first three commandments are not in the laws since the first amendment prohibits the government from endorsing one religion or religion in general. At the same time, the first amendment allows all religions to prosper on their own. Similarly, laws that stem from religious beliefs alone, which serve no secular purpose, are not constitutional. Prohibiting people from eating pork or working on Sunday as the Bible commands are not permitted since they serve no useful purpose otherwise. One can preach, teach and beseech as one wishes, the first amendment allows for that too, but one cannot use the power of government to force one's purely religious views on everyone, even if one's views are held by the majority.

States have laws that discriminate against gays in various ways. When these laws reach the courts, the state has to present a rational basis for the laws. They have to show how this discrimination serves a compelling state interest. It soon becomes all too clear that politicians passed these laws to cater to the prejudices of their more conservative religious constituents because there is no demonstrable secular basis for these laws, whatsoever. If something causes no harm or loss to anyone, there can be no law against it.

To the contrary, the 416,000 children (2000 census) who live with gay and lesbian couples are being harmed by this unwarranted discrimination since they do not have the same rights and protections that children of married couples have.

Since five State Supreme Courts and several US Appellate Courts have found no Constitutional (secular) justification for laws that discriminate against gays, and more will inevitably follow, an amendment would have to be passed which would write discrimination into our Constitution for the first time in our country's history! Of course this would be humiliating. It's like saying that blacks were worth 3/5 of a person. It saying that gays and their children don't have the full rights of citizenship that the rest of us have. It shows the animous toward gays that Justice Kennedy spoke of in the Romer v Evans decision.

In His example of the good neighbor, Jesus told us of the Samaritan, a person who was dispised by almost everyone in his day. How apt a description of how gays are treated by many in our own time. "Who was a good neighbor to this man?" Jesus asked. "The one who showed mercy," the lawyer replied. "Go and do likewise," Jesus told him.

This seems pretty clear to me. Sometimes I wonder, what part of "love thy neighbor" do some people not understand? Love to both, Bill

Of Fruit Flies and Men

An article on fruit fly mating behavior was announced in the June 3, 2005 journal Cell. From the NY Times article For Fruit Flies, Gene Shift Tilts Sex Orientation of the same date:

"Both male and female flies have the same genetic material as well as the neural circuitry required for the mating ritual, but different parts of the genes are turned on in the two sexes. But no one dreamed that simply activating the normally dormant male portion of the gene in a female fly could cause a genetic female to display the whole elaborate panoply of male fruit fly foreplay."

The important point here is that all fruit flies, male and female, carry the genes which, when activated, produce either male or female orientation and mating behavior. This includes the "master gene" which produces a different sex specific protein based on other male v female signals that direct mRNA splicing to produce either the male or female version of this protein. Then this one protein controls the activation of one of the two sets of genes that alternately produce either male or female orientation and behavior.

This study parallels what I was saying in my previous post Genetic Basis for Sexual Orientation. We all carry the sets of genes which would lead us to be attracted to either males or females. It is the signal provided by the presence or absence of the Y chromosome after fertilization which usually selects the set associated with the opposite sex. Yet our experience shows that at times this signaling can go awry and we experience others who are attracted to the same sex, to both sexes or neither.

While human behavior is more complex than that in these flies, we cannot deny that the sexual arousal response that is programmed in the limbic system by our genes is by its primitive nature quite compelling. More importantly, it leads to the bonds of love and affection that cannot form when this genetic predisposition is absent.

There is no one gene for homosexuality. We all have the sets of genes that, when selected like in these flies, would result in our being attracted to and reacting to either males or females, our biological sex not withstanding. Sexual orientation is an inborn characteristic based on these genetic factors that cannot be changed. The sooner we all understand and accept this the better.

Procreation is not the only Reason for Marriage

The relationship between procreation and marriage seems to be a rather weak point to make as an anti-SSM argument.

This relationship has been brought up in several of the state arguments attempting to justify laws that discriminate against gays and lesbians and has been summarily dismissed.

Some states, in fact, allow first cousin marriages only if the couple can prove through age or other evidence that they cannot procreate. On the other side, I'm aware of no state marriage law that mentions the ability to procreate in any way or fashion.

Any suggestion that we now add such a radical provision would meet with little public support if any. Think of how insulting it would be to all those couples we allow to marry now, whose inability to procreate is so obvious. We consider all these marriages valuable, not just those that may produce children.

The courts position, simply stated is: procreation is not a requirement for marriage any more than marriage is a requirement for procreation. Considering all those who now marry where procreation is not possible, it has to remain this way.

Yet procreation is only the first step in an 18 plus year process of raising a child. While we may fully support the ideal of having a child raised by his or her two married biological parents, we cannot abandon any children simply because they do not find themselves in this ideal situation. We support adopted children and their parents. We support step children and encourage step parents to adopt their spouse's children, the idea being that having two legally responsible parents is better than having just one.

For this same "two parents are better than one" reason and others, the American Academy of Pediatrics supports second parent adoption for gay and lesbian couples as related in their news release AAP supports second-parent adoptions by homosexuals. This, they sincerely believe, is in the best interest of the children they serve.

For these same valid reasons, it would be in the best interest of the 300,000 or so children who are being raised by these lesbian and gay couples to be provided with all the same rights, privileges and community support that the children of heterosexual couples now have by allowing their parents to marry.

We should never let the "ideal" prevent us from doing what is best to support all the children in our communities.

Also posted at: Family Scholar's blog Comment #49