Wed | Apr 26, 2017

Ian Boyne: Holy war over gay marriage

Published:Sunday | July 5, 2015 | 7:00 AM
The White House is lit up in rainbow colours in commemoration of the Supreme Court's ruling to legalise same-sex marriage on June 26.

An intense, bitter and deepening war of words has erupted since the US Supreme Court's decision to allow gay marriage in America. Reason is the biggest casualty.

Opponents of gay marriage, largely religious people, are busily quoting the Bible, calling down brimstone and fire and announcing Christ's imminent return, while gay-marriage proponents are consigning them to the Dark Ages and likening them to Nazis, racists and defenders of slavery. I have read and heard precious little discussion of the legal issues, and very few people would have taken the time to read the more-than-100-page judgment. I have done so - and very carefully - several times.

It is most instructive to read the opinions of the dissenting justices. I believe that a dispassionate, objective and evidence-based gay-marriage proponent could read this judgment and agree that the four dissenting justices offer more legally and philosophically sound arguments than the Gang of Five majority. I am a religious conservative on gay marriage, but I recognise good arguments when I see them, which is why I reject many of the arguments used against gay marriage and for the retention of the buggery law in Jamaica, for example.

I am convinced the US Supreme Court justices made an error in constitutional law. You could argue that gay marriage might be legitimate. But that is an issue for the individual states to decide. Federal law cannot justifiably be invoked to settle that issue. What the Supreme Court justices have done is to scuttle the democratic process, overstep their bounds with an attempt at social engineering and capitulated to a system of men and not laws. The four dissenting justices - Chief Justice Roberts, Thomas, Scalia, and Alito - have provided powerful arguments against the majority of five whose reasoning was egregiously weak and sloppy.

You can't dismiss the four dissenters as 'fundamentalists', a conversation stopper these days. Not one of them is Evangelical or even Protestant. They have been trained at the Harvard and Yale law schools, for your information, you secular bigots. Forget about the name-calling and deal with the arguments. The chief justice was clear that The Five had usurped people power by arrogating to themselves a right they don't have in law.

"Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for such an extension are not," the chief justice says in his dissent. "The fundamental right to marry does not include a right to make the state change its definition of marriage. The people of a state are free to expand marriage to include same-sex couples or to retain the historic definition," he concedes.

But he goes on: "Today, however, the court takes the extraordinary step of ordering every state to license and recognise same-sex marriage. To those who believe in a government of laws, not men, the majority decision is deeply disheartening." What the court did, declares the chief justice, was "steal this issue from the people".

The Supreme Court's decision was a blow to democracy, just like its Citizens United decision. "The majority decision is an act of will, not legal judgment. The right it announces has no basis in the constitution or this court's precedent," opines Roberts. Then in one of his several scathing statements, Justice Roberts slams: "The majority expressly disdains judicial 'caution' and omits even a pretence of humility, openly relying on its desire to remake society according to its own 'new insight' into 'the nature of injustice.'"

This non-fundamentalist justice says, "The majority's argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority's position indefensible as a matter of constitutional law." And that is a point that Roberts and the others argue quite plausibly. Don't take my word for it. Go read the judgment for yourself. Use your reason and compare the arguments given by the majority versus those of the four.

 

QUOTE THE JUSTICES

 

I suggest to religious people that rather than quoting the Bible, quote the four learned justices. You don't have to use the Holy Book in this holy war over gay marriage! One of the masterstrokes Roberts delivers in his judgment is the quotation from Majority Justice Kennedy himself, who said in an address to Stanford University: "One can conclude that certain essential, fundamental rights should exist in any society. It does not follow that each of those essential rights is one that we, as judges, can enforce under the written constitution. The Due Process Clause is not a guarantee of every right that should inhere in an ideal system." Unbelievable!

If Supreme Court justices act as social engineers or a mere mirror of public opinion, rather than as interpreters of the constitution, you have a system of men, not law. While the law must be dynamic, there must be caution. Interpreting the constitution can't be subject to the whims and fancies of public opinion but must be grounded in law.

Roberts is coldly analytical in noting that the majority's major "themes are that marriage is desirable and the gay petitioners want it". (Read their judgment. Their reasoning is shoddy.) Roberts admits that "the compelling personal accounts" of gay people are a "primary reason many Americans have changed their minds on gay marriage". But he says importantly: "As a matter of constitutional law, however, sincerity of petitioners' wishes is not relevant."

Justice Scalia was stinging in his judgment: "A system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy." This is a profound statement. Not enough attention is being paid to the anti-democratic nature of this decision by the court and its perversion of government by the people, which the US has boasted of since its inception. Whatever the moral merits or demerits of gay marriage, let the states decide.

 

TRAVESTY TO DEMOCRACY

 

An unrepresentative group of people are allowed to make a philosophical judgment - not a judgment based primarily on constitutional law. It is a travesty of democracy. Some say this judgment harms no one. Justice Roberts disagrees: "Perhaps the most discouraging aspect of today's decision is the extent to which the majority feels compelled to sully those on the other side of the debate." This is where the deeper threat to democracy and individual liberty arises.

Pastors are going to be persecuted, bullied, stigmatised and called all kinds of names for refusing to marry gay people. Christians who refuse to offer services to gay couples will be affected. The same way you can't refuse to offer services to black people. It's not going to be a matter of live and let live. The law will compel religious people to go against their conscience.

Religious persecution, discrimination, oppression and stigmatisation will increase, and so will intolerance of religion. It is coming down to a war on religion. This one will be even bigger than the war on Islam. In fact, Christians and Muslims now have something to unite on. Ron Dreher had a sobering article on Time magazine's website titled 'Orthodox Christians must now learn to live as exiles in our own country'. "We have to accept that we really are living in a post-Christian nation. The fundamental norms Christians have long been able to depend on no longer exist. LGBT activists will be coming after social conservatives. The more immediate goal will be shunning and persecution of dissenters in civil society."

And there was an insightful article by gay writer Clay Farris Naff on the Huffington Post on June 27 titled 'Does legal gay marriage doom Evangelical Christianity?' It says: "Opposition to gay marriage has only one refuge: old-time religion. What the religious Right rightly fears is being blown away ... . More than two-thirds of young Americans already accept gay marriage. As it proliferates, more will. To come out anti-gay is already seriously not cool. Increasingly in high schools and colleges to be anti-gay will be like coming out as a Klansman." Christians, take warning from the gay man himself!

I fear a renewed spirit of intolerance, unreason, bigotry, persecution and illiberalism. Passions will trump intellect. Emotions will drown out reason. And fundamentalists won't have any monopoly on dispensing prejudice, stigma and irrationality. Free speech and individual liberty will have to be harnessed as values to save us from tearing one another apart. We need a happy marriage of reason and tolerance.

- Ian Boyne is a veteran journalist working with the Jamaica Information Service. Email feedback to columns@gleanerjm.com and ianboyne1@yahoo.com.