In 1967, in a landmark decision, the United States Supreme Court unanimously struck down the State of Virginia’s anti-miscegenation law as unconstitutional. Loving v. Virginia (known, poetically and appropriately, as simply Loving) is hailed as one of the most important civil rights cases in American history, but it’s not merely a civil rights case or a case about racial discrimination; at its core, Loving is about the institution of marriage. Twenty years later, the Supreme Court decided another case about marriage, and although it may not be as well-known as Loving, Turner v. Safely is just as important. In Turner, the Court held that laws preventing prisoners from marrying were unconstitutional. Marriage was not a privilege; it was a fundamental right.
As a general rule, when the government enacts a law that infringes on a fundamental right, particularly when the law targets a specific group or class of people who have been historically discriminated against, it is presumed to be unconstitutional. In order to successfully rebut that presumption, the government needs to prove to the court that the law is “narrowly tailored” and that it advances a “compelling state interest.” This, in legalese, is known as “strict scrutiny,” and it’s an incredibly difficult standard to meet.
I mention this all for a reason and as context. Yesterday, after publishing an opinion piece about Governor Bobby Jindal’s commencement address at Liberty University, I heard from a few Christian conservatives who thought I was being unfair. Among other things, I was accused of “mocking” Governor Jindal for not being a liberal and of “attacking Jindal and the First Amendment.” I was told that I was making “assumptions” that gay and lesbian Americans should be “entitled” to “certain rights” and that I was “imposing” my own worldview on others who, like Jindal, do not start with the same “assumptions.”
Years from now, after this is all well-settled law (which, it most assuredly, will become), the argument that “sexual orientation” should not “entitle” you to certain rights will be universally understood for what it truly is. This is not and has never been about “sexual orientation” “entitling” “certain rights;” it’s about the United States Constitution enshrining rights for all Americans.
You may believe, as an article of your religious faith, that some people are living in sin and doomed to eternal damnation because of their lifestyles and beliefs and those with whom they choose to love and associate. But in a country founded by immigrants who were escaping from the very same brand of religious totalitarianism, you do not and have never had the right to impose laws that arbitrarily infringe on the freedom and liberty of others merely because they look differently or love differently than you.
It’s taken more than 225 years for America to understand that bedrock principle, and it’s still not fully realized. It’s an ongoing struggle.
Today, our prisons are home to an entire generation of African-American men, despite the fact that African-Americans commit crimes at the same rate as whites. Today, women continue to earn less in the workplace than their male counterparts, and their rights to contraceptives and personal decisions about reproduction continue to be under assault.
Today, conservative justices on the Supreme Court believe that the right to privacy is sacrosanct when it applies to anonymously influencing elections or owning an arsenal of weapons, but, at the same time, they argue the police can arrest an adult, in their own home, for having consensual sex and that women should seek the permission of Big Brother before having an abortion.
Today, heterosexual inmates maintain the fundamental right to marry, even if they will never be able to consummate their union, but people like Annise Parker, the Mayor of the fourth-largest city in America and a woman who has spent her entire career in public service, cannot have her marriage to Kathy, her partner of twenty-four years and parent to their two children, recognized by her home state of Texas.
I was born and raised in one of the most religiously conservative pockets of the entire country, and I will always cherish my hometown. Sure, it has its fair share of outright bigots and racists, and I know that for some of my gay and lesbian friends, it’s not always easy for them to be themselves. Alexandria, Louisiana can, at times, seem oppressive and claustrophobic to anyone who dares to defy convention, but despite its religious conservative bona fides, it is still, in many ways, a surprisingly progressive community. And living there for most of my life taught me an important lesson: Ignorance causes intolerance; it’s not really about religion. Yes, ignorant people may use religion to justify and reinforce their intolerance (and some can actually become rather skilled at it), but ultimately, hatred or fear or intolerance of the Other is merely a manifestation of ignorance.
But ignorance should not be confused with willful stupidity or blind hatred, and I am not trying to excuse the actions of anyone who is animated by animus.
That said, I know I’ve opened myself up for criticism here. Who do I think I am? Am I implying that anyone who has a fundamental disagreement with me is simply “ignorant”? Isn’t that also, by definition, intolerant? Am I implicitly discriminating against those who espouse a different religion than I do, and if so, isn’t that an infringement on religious liberty?
I doubt I can ever adequately satisfy my critics, but here goes nothing: If we are ever able, as a country, to fully protect religious liberty, we must first ensure that equal protection and due process aren’t merely theoretical concepts. We must guarantee that all Americans enjoy the same fundamental rights, regardless of their race, gender, disability, religion, or sexual orientation. If we truly care about fairness, justice, and equality, we must be a country informed by the rule of law, not assumptions of faith.
And that gets me back to the fundamental right to marriage and those two Supreme Court cases. When Louisiana Governor Bobby Jindal spoke about an assault on religious liberty, he made it clear that he was referring to laws and court decisions that recognized same sex marriage. I have no doubt whatsoever that history will not treat Jindal kindly on this issue. The majority of Americans, including the majority of mainline Christians, support same sex marriage. Let’s no longer pretend that this is about religion being under siege.
We’re still waiting, Govna.