July 18, 2004

David Reinhard Reveals Gordon Smith's Self-Contradiction

Still Don't Believe Anti-Marriage Amendments Are About Prejudice?

No, in fact the self-contradiction we're speaking of isn't Senator Gordon Smith's support for gay rights but opposition to same-sex marriage, although that's the ostensible premise of today's David Reinhard column in The Sunday Oregonian.

Rather, the self-contradiction revealed by Reinhard in a column that relies almost entirely on quotes from Smith, was so revealed entirely without intention on Reinhard's part. In fact, we'll wager that he didn't even notice it. To get into it, let's take the first relevant data point:

"I don't think debates about the legal framework of the American family are unimportant," the Oregon Republican said Thursday, before moving to the so-called "discrimination" issue offered up in last week's Senate debate on a constitutional amendment to protect traditional marriage. "We're preserving what is. We're not discriminating. We're preserving what's been in our Constitution and our laws from the beginning. . . ."

Now, simply scan or scroll down to near the end of Reinhard's column for the second relevant data point:

"[S]ome believe it's not an issue appropriate for federal action," he says. "I think their votes will change when a federal judge vetoes their state constitution by finding an equal protection violation." ...

So here's the problem for both Smith and Reinhard. Despite the contention that "protecting traditional marriage" is merely the preservation of something our Constitution and our laws have said from the beginning, in fact the Constitution is silent on the subject of marriage. Or, at least, it does not mention the word. In fact, were it not apparently silent, Smith and Reinhard and others would not be screaming for us to change that Constitution.

But doubly worse for Smith and Reinhard is that very real possibility -- conceded by Smith himself in the quote above -- that the courts may find discrimination in marriage to be a violation of the equal protection clause of the 14th Amendment. Why is this doubly worse? Because if the courts were to so determine such a violation, it in essence would be tantamount to declaring that what the Constitution has been saying "from the beginning" (or, technically, since the adoption of the 14th Amendment) is that same-sex marriage cannot be prohibited.

All of this adds further evidence that the anti-marriage forces are, after all, merely working to force discrimination into the Constitution. The forces of the righteous-wing fear that the courts (whose job it is to make such determinations) may find that the 14th Amendment protects same-sex marriage. In the end, there's simply no other rationale for their desire to amend the Constitution.

Posted at 05:24 PM | PermalinkComments (13) | TrackBacks (1)
More In Law Enforcement & Legal Issues, Same-Sex Marriage, State of Oregon

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Comments (13)

  1. myrln on 18 Jul 2004

    In a cartoon seen the other day, one woman talking to two others. "Gay marriage doesn't threaten the values and sanctity of my marriage, single, straight women do."

  2. Isaac Laquedem on 18 Jul 2004

    For me the philosophical question is the extent to which the states remain sovereign. "States' rights" -- letting the states mostly alone to do their own thing -- is usually a conservative position. Republican senators who line up for federal intervention and against states' rights on same-sex marriage give up their ability to line up against federal intervention on other issues. If I were a Republican senator I would not want to give up my freedom to oppose federal intervention in matters traditionally left to the states to administer.

  3. The One True b!X on 18 Jul 2004

    Well, they have the same problem on medical marijuana and physician-assisted suicide. Then again, I suppose that's politics: It's not about political philosophy, it's about political expediency.

    In other words: Whatever suits the issue at hand.

  4. Jack Bog on 18 Jul 2004

    An interesting semantical debate lurks here.

    The Constitution has not been a static body of law. Surely right after the Civil War, when the 14th amendement was adopted, no one in their right minds thought it would ever require the government to recognize gay marriage.

    The gradual recognition of gay rights has been a process. Smith and friends want to halt that process by adding words that would stop the evolution of the existing document.

    I'm not sure it's "adding discrimination" so much as preventing the establishment of a new anti-discrimination principle. I'm against the amendment, but I'm willing to debate it on that level.

  5. The One True b!X on 18 Jul 2004

    I didn't mean to suggest that the concept of same-sex marriage was a conception at the time either of the drafting of the Constitution itself or of the 14th Amendment, if the way I wrote it came out that way. It was just another way to show the nearly-inherent fallacy of the arguments Smith and others like to present.

    And I agree that a certain part of this is semantics, and on one level I'm probably just trying to turn the semantics around against opponents of same-sex marriage.

  6. Bob R. on 18 Jul 2004

    I agree that the authors of the 14th amend. probably didn't conceive that it would ever apply to gay marriage.

    The 14th amendment hasn't changed. But our conception of and recognition of gay people has changed.

    The populace, more and more, and the courts, more and more, recognize that homosexuality is innate and naturally occuring, that it is about relationships as much as it is about sex, and that most everything that can be observed about heterosexual relationships can be observed in homosexual relationships.

    Once gay people are recognized as people, then the 14th amendment is increasingly seen to apply.

    - Bob R.

  7. jj on 19 Jul 2004

    Jack wrote:

    >The Constitution has not been a static body of law. Surely right after the >Civil War, when the 14th amendement was adopted, no one in their right minds >thought it would ever require the government to recognize gay marriage.

    No, you are quite correct. Decidedly NOT a static body of law. It is important to remember that when the immigrants and invaders first arrived from overseas, it was the death penalty for those who practiced homosexuality. "For the Good of Fociety" was the quote I recall reading (They used those funny S').

    When the country was founded, it was legal to own slaves. Women could not vote, and in some areas were not allowed to deal with banking institutions.

    I bring this up not as tangental evidence, but rather to make a point: when something is wrong, fundementally wrong, steps are made to correct that. It might have taken a good 350 years of our history to change those parts of our legal code, but we did so.

    And ultimately, the 14th ammendment does just what you describe. "nor deny to any person within its jurisdiction the equal protection of the laws." When you say that *any person* gets equal protection, well, what part of any person does this not pertain to? Felons? Ok, I will go with that. They break the law. However, THEY can get married, despite having broken the law.

    So just because I have found a male as a spouse, I am denied the same rights that YOU have simply because you found an opposite sex partner? What, is my tax money not good enough? *I* pay for the right to live here just as you do. In fact, I probably have been paying MORE for that privelege than you-- Single tax rate are higher the Married tax rates. But based upon my orientation, or choice, or whatever, I am treated as less than a citizen.

    Can I take a tax discount? Since I cannot get the full rights afforded to everyone else in this country? What is full citizenship worth, anyway? 3/5ths of a heterosexual? how about 16/17ths, since we would be nullifying that ammendment, and rendering that portion of the document worthless for 2-10% of the population.

    Just a few things to think about.

    JJ

    Oh, and Jack, I am NOT attacking you in any way. I used false assumptions, blatant grandstanding, and mean words to get the point across. FWIW, I am married to a woman (quite happily I must add).

  8. Sioen on 19 Jul 2004

    Sen. Smith's own words on the Senate floor (they surprised me, given that he used to appear a somewhat tolerant human being) showed very clearly the real meaning and intent behind this amendment, and there's nothing semantic or Constitutional or philosophic about it.

    Smith said there is value to preserving marriage because children are then raised in a "natural" environment.

    Calling us "unnatural," demonizing us as less-than-human -- however modernly it's phrased today -- is what the bigots have been doing for hundreds of years. That's what this amendment really is about, and no gussying up can hide that.

  9. Stash on 20 Jul 2004

    What if we, as a state, do the right thing and provide a clearer demarcation between church and state?

    The sanctity of marriage can be handed to the church of your choice and the legal trappings (civil union)is handled by the state. Neo-conservatives will be able to take their new civil union contract home and cross out "civil union" with a crayon and write in "Marriage"------then, they can get a second fancy document reeking of godliness that says whatever the church will ordain.

    I will happily give up the word marriage in all contractual documents that I share with the “old ball and chain”.

  10. doretta on 20 Jul 2004

    Gordon Smith's argument about "natural environments" are just lies, as well as all the other bad things that can be said about them, unless he plans to follow up with an amendment to take children away from their mothers and fathers.

    Denying gay parents marriage means their kids don't get the legal protections other kids get. It doesn't keep their parents from having and raising them.

    Gay people aren't going to stop having kids because the discrimination that's always existed gets put in the Constitution.

  11. Wendy on 20 Jul 2004

    With regard to the constitutional question, I am fond of the argument that denying same-sex couples the right to marry is an equal protection violation on the basis of sex. In other words, if Joe is permitted to marry Mary but Jane is not, the only reason for distinguishing between Joe and Jane is their sex. That is an impermissible distinction and should be an equal protection violation.

  12. JJ on 20 Jul 2004

    >What if we, as a state, do the right thing and provide a clearer demarcation between church and state?

    Sounds like a good deal to me. If the state wants to get away from the religious aspects, and just grant civil unions to everyone, I am more than happy to let that happen. After all, the constitution merely specifies equal protection, not specific protection.

    I always thought that the whole thing was kinda weird anyway, How a religious leader would be the one to conduct a ceremony and sign the certificate, but they can't just issue their OWN certificates and have them bind.

    JJ

  13. Jonathan on 21 Jul 2004

    On Jack Bog's issue of static vs. living Constitution, I think the "righteous wing" (thanks B!x, I hadn't heard that before) equates its view of the Bible (a fundamental statement of God's intent, never changing), with the Constitution. The problem is, even under it's/their view of the Constitution, is that presumably none of them would believe that our "founding fathers" were inspired by God as they believe the biblical writers were. For that matter, I am confident that most fundamentalists would run away from the suggestion that Thomas Jefferson (who cut and pasted the New Testament to create something he liked)was creating something divine in the Constitution. If it is not divine, then while I think it is OK for the right to make policy arguments about what the Constitution should or should not include or require, I do not think it is intellectually honest to claim that it should be static ... it's just a body of law, changeable by a variety of means, e.g. that pesky penumbra of rights that emanates from it.

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  1. Blue Oregon and the Same Sex Marriage Discussion continues on 20 Jul 2004

    The One True b!X has a post entitled David Reinhard Reveals Gordon Smith's Self-Contradiction. It highlights a column by David Reinhard of the Oregonian concerning Senator Gordon Smith's views on the proposed amendment to the Constitution in regard...