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The Legalization of Gay Marriage in New York State: There's Good News and Bad News

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-          Steven Jonas, MD, MPH

The legalization of marriage between partners of the same sex in New York State has special meaning for me. After my mother and father divorced in 1946, my mother lived with my "aunt" until 1959 (when the latter walked out on her to join a much younger, much prettier woman - this sort of behavior being found not just among heterosexual couples). We were members of an upper middle-class left-wing set in New York City (and I do include myself in the group because I was very political from a very young age - I can remember discussing his work with Howard Fast in my mother's living room when I was about 10, and joined my mother and "aunt" at many of the parties and other events). No one in it said boo to a goose about their relationship. They were as "out-of-the-closet" as one could be back then. As for me, I thought nothing special of it either. I saw my Dad about once a month and during vacation time (becoming very close to him only as an adult). The rest of the time it was Mom, Hanna, and I.

The new New York State law was finally passed with the help, I must say, of four very politically brave Republican state senators. Mine from the 1st Senatorial District on Long Island, Ken LaValle, who, as an attorney should know better, sadly was not among them. Indeed I had thought that the bill would not make it through to passage. But it did. Just think, Mom and Hanna could have married if they were still with us and still together. Of course, back then no one even thought of such a thing. But they could have now.

In present time I have a second personal reason for being thrilled with the law's passage. Late in life I have come to have a gay step-son, one who blesses my family with his presence (as both my own son and daughter will tell you). So now, in my state and his too, should my step-son meet a suitable partner, they will be able to get married, just like any other loving couple. And, fortunately in my state we do not have "Initiative and Referendum" as they do in California.  

Originally, over a century ago, "I & R" was set up by progressives to overcome an entrenched reactionary state legislature run by the then equivalent of the Koch Brothers and their ultra-right wing clones. But, in the modern era the system for the most part has come to be used by the very reactionary forces that it was originally designed to combat. And so came California's infamous Proposition 8, adopted after a stealth campaign funded primarily by the Mormon Church, operating from its home-base of Utah. Well, that cannot happen in New York State. And it would be extremely difficult for the Republican Christian Right to amend the state's Constitution, since that is not subject to change by referendum either, and going the legislative route is very cumbersome.   Such an amendment   would never get through the State Assembly as it is now constituted anyway. So, good news all around. Well, not all around, but we'll come to that below.

The good news is that the proposed change in the law passed in New York, and it passed with the votes of legislators who were voting for it on Constitutional, not necessarily political, grounds. Yes, same-sex marriage bans are not fair, are unjust, and are dog whistles for homophobia. But, the primary reason for the legalization of same-sex marriage has nothing to do with fairness and justice. It has everything to do with the bimodal nature of marriage in our country and the 14th Amendment to the Constitution. (It happens that the case challenging Prop. 8 is being made on Constitutional grounds, but the argument predates its adoption by the revoke-Prop.-8 legal team.)   It also has to do with the provisions on freedom of religion of the Firs Amendment, which the 14th applies to the several states: " Congress shall make no law respecting an establishment of religion, or pro­hibiting the free exercise thereof;"   Gay marriage bans, which their supporters always tell us are based on biblical/religious law, on their face violate both the Establishment clause and the free exercise clause.

Every religion in the United States has a system for marriage under its own rules. But how odd it was that the Mormon church is one of the most prominent proponents of the "marriage is between one man and one woman" mantra. It lead and heavily funded the California Prop. 8 campaign. But, oddly enough the fundamentalist Mormons, who trace their heritage, and rules, directly back to the founder of the Church, Joseph Smith, Jr., have a quite different form of marriage. It is, on paper, illegal throughout the United States, but in their home state and certain counties in neighboring states it is openly tolerated. You know the rule of this particular group of Latter-Day Saints: "marriage is between one man and whole bunch of women." You can bet your sweet pitootie that no one would ever go after Mormon polygamy under the infamous "Defense of Marriage Act."   But consistency has never been prominent among Rightists either of the religious or non-religious type, and hypocrisy is one of the prominent trademarks of the GOP.

Of course, any church is entitled to formulate and abide by its own rules for marriage, and if they don't want to countenance or recognize same-sex marriage, under the First Amendment they love to denigrate so much, that is their right. And then again, any individual who firmly believes that marriage should be only between persons of opposite genders should definitely not marry someone of his or her same sex. That is their right too.

But, then there is the institution of marriage (with provisions for its legal dissolution) that is found in the law, extensive and sometimes quite dense, that exists on the books of every one of the 50 states. That's civil marriage. This institution has absolutely nothing to do with religion any more than state motor vehicle laws do. In every state a couple can walk into the office of an official endowed by that state's law to perform a marriage ceremony and certify that it is licensable under the law, and get married. Unless, that is, in most states, they happen to be of the same sex.

But, then we come to the clause of the 14th Amendment to the U.S. Constitution that states that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; . . . nor deny to any person within its jurisdiction the equal protection of the laws [emphasis added]" Open and shut, one would think. Why it's right there, in the Constitution: equal protection under the law. But not so fast. Not open and shut at all. And why? Because unique among nations in the advanced capitalist world, ours is the one in which one of the two major parties runs in part on political homophobia, the dog whistle for which   is the issue of gay marriage.   That the GOP runs on homophobia is the main reason that we have the problem of the illegalization of same-sex marriage in most of the states, despite the clear provision of the 14th for equal protection under the law. And so comes the bad news.

First, it is that we have such a party, a party that runs on homophobia and uses homophobia politically, just as it uses racism and Islamophobia and the promotion of religious persecution on the abortion issue (you don't believe that life begins at the moment of conception? Well, we are going to criminalize your belief.   This latter, fact by the way, should also be regarded as a national disgrace. But there are few, if any, opposition political figure who will come anywhere near that one with even a 100 ft. pole.) The second piece of bad news is that while we can say "hooray, New York has become the sixth state to legalize same-sex marriage," there are 44 others that have not. Twenty-nine of them actually have state Constitutional bans against it (New York Times, N. Confessore, "Beyond New York, Gay Marriage Faces Hurdles," June 27, 2011).

A significant number of those came into being when Karl Rove led a campaign to place proposals for such Constitutional amendments on the ballot in those states where the Constitution can be amended in such a way, in the 2004 Presidential elections in order to get as many right-wing voters to the polls as he possibly could). Another 12 have laws against it. Yes, folks, that's 41 out of the remaining 44 in the NG column. Bad arithmetic. Bad news.

The Prop. 8 case is obviously of huge significance. For if the legal challenge to it as unconstitutional is upheld then the pro-14th Amendment forces will be able to go after every one of those homophobic State Constitutions and State laws that make second-class citizens of the homosexual members of our nation's population, on 14th Amendment grounds. But that's a very big if, given the right-wing, and Catholic, majority on the Supreme Court, which just loves to ignore "Original Intent" or "Amendment Intent" when in a given case paying attention to either one would go against the grain of their reactionary worldviews and projected policies. So we shall see.

But for now, in New York State at least, we can celebrate the passage of a law that brings us into adherence to the 14th, and I can celebrate for the memory of my Mom and my "aunt" and for the very present reality of my step-son Mark.

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Originally Published on BuzzFlash@Truthout on Wed, 06/29/2011 - 1:22pm.

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Steven Jonas, MD, MPH, MS, is a Professor of Preventive Medicine at the School of Medicine, Stony Brook University (NY) and author/co-author/editor/co-editor of over 30 books on health policy, health and wellness, and sports and regular exercise. In (more...)
 
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Hopefully these bans will be thrown out one day.... by Steven Jonas on Friday, Sep 9, 2011 at 10:28:23 AM
Racism and religious bigotry is all the GOP has to... by kanawah on Friday, Sep 9, 2011 at 9:38:51 PM
Why not referendum? Why are nazi scared to put it ... by John Smith on Friday, Sep 9, 2011 at 10:35:17 PM
Well said... Civil Rights should never be put up t... by Tsara Shelton on Sunday, Sep 11, 2011 at 9:15:14 PM
Nice article. I would like to add one more item t... by Walter Barton on Wednesday, Sep 14, 2011 at 7:45:50 PM