WHEN “FREEDOM RINGS”

By Edwin Cooney

Last week, as the Supreme Court wrestled with the question of how it should adjudicate the rights of gays and lesbians to marry, some intriguing socio/legal issues were discussed.

Writing in the New York Times, Adam Liptak reported the likelihood that Chief Justice Roberts might find a way to concur in a 6 to 3 decision which would allow gay and lesbian couples to marry without tackling the question of the constitutionality of state laws affecting sexual orientation.

If Sue wants to marry Tom and Charles wants to marry Tom, Sue can and Charles can’t.  So, if Sue can and Charles can’t, isn’t Charles the victim of gender discrimination as opposed to sexual orientation discrimination?

Supporters of state bans on gay and lesbians argue that sexual discrimination would only exist if the sexes were treated differently.  In other words, if gays were not allowed to marry at all, that would be sexual orientation discrimination.  After all, no state currently bans gays from marrying lesbians, or lesbians from marrying gays.

Mr. Liptak speculates that Justice Anthony Kennedy is likely to write the majority opinion freeing gays and lesbians to marry by applying other articles or clauses of the constitution as they relate to sexual orientation.  However, he doesn’t suggest what constitutional standards Justice Kennedy might apply.  My guess is that Justice Kennedy might use the right to privacy which other justices have found in the 14th Amendment.  In other words, since the decision to marry is a personal decision, it is a private decision as well.       

The point of all this is that as long as both sides in a dispute are treated equally there is no need to change existing laws.  The argument against that goes back to the days when most states didn’t allow interracial marriages.  Bans on interracial marriages, of course, affected both races and were ruled unconstitutional in Loving vs. Virginia back in 1967.

It’s amazing that after more than 200 years of living in a “free society,” so many Americans are unable to clearly recognize the legitimate domain of human freedom!

As I see it, there are two reasons for this.  First, some of the most prominent of our “founding fathers” originally granted themselves the right to enslave people for their own profit utilizing the “sovereignty” of the states to justify their personal socio/political prerogatives.  The second reason has to do with human nature.  Very few of us like to be told by anyone how to conduct our lives when our personal profit, security, or control over our well-being is at stake.

Back in 1964, Barry Goldwater opposed passage of the Civil Right’s bill, not because he was a racist, but because he believed that the public accommodations portion of the bill was an attempt to regulate human attitudes rather than human behavior.  “You can’t pass a law,” Senator Goldwater insisted during the 1964 presidential campaign, “that will make me like you or you like me.”  What Goldwater failed to adequately acknowledge is that discrimination in public accommodation extended beyond the comfort of personal choice.  So long as the choices we make directly inhibit the personal and private lives of others, they constitute human tyranny.

A word or two on the subject of marriage: human marriage is a worldwide institution. It exists in most cultures.  During the years of the old Soviet Union, which the world knew as a “godless society,” no one suggested that marriages in Communist societies weren’t legitimate.  As for gay and lesbian marriages, there is absolutely no evidence that the right of gays and lesbians to marry in any way affects the legitimacy of traditional marriage.  Most of the time, gay and lesbian couples treat the children they adopt (when they’re permitted that privilege) better than many traditional married couples.  Worthy and unworthy people are found living many lifestyles.  For that reason, and that reason alone, neither state nor church ought to intervene in a truly free society.

Freedom rings many times when we allow it and especially when we listen for it.  It rings on Washington and Lincoln’s birthdays, on the Fourth of July, on Patriots’ Day, on Labor Day, and on Thanksgiving Day.  It rings when we sing, when we salute Old Glory, and, of course, during the seventh inning stretch.  However, the bells of liberty ring most clearly when all of us live and let live, and most of all mind our own business.

Hence, if Sue can’t have Tom because Charles wants Tom and Tom ultimately wants Charles, Sue can always choose Dick or Harry!

RESPECTFULLY SUBMITTED,

EDWIN COONEY