Marriage as a Fundamental RIght

President Obama, while voicing his personal approval of gay marriage, has also stated that the legality of gay marriage should be left to the individual states.  This is not a politically motivated stand, as some might assert, but an expression of his belief that the federal government should not intervene in state decisions.  He has expressed this view before in stating that the Defense of Marriage Act –which states that marriage is the legal union   between one man and one woman -- is unconstitutional.  In Constitutional lingo, President Obama takes the position that marriage (or by implication gay marriage) is not a ‘fundamental’ right and thus the power to define marriage and marriage rights fall to the states and not the federal government.

Lest we forget, the Tenth Amendment reserves all powers to that states that are not expressly denied to them or which are expressively given to the United States.  Ultimately the Supreme Court justices draw, and often redraw the line between federal and state rights when it comes to individual liberties.  For example, a few years back the Court decided that it would not second guess Connecticut’s (or any state’s) view regarding what justified public purpose when applying the right of eminent domain.  (This decision resulted in a spate of state sponsored laws to clarify their respective positions on the matter.)  Similarly, for the longest time the Court side-stepped applying the second amendment to state actions. 

Over time it has come to be understood that only a citizen’s ‘fundamental rights’ demanded federal protection –and by implication- federal intervention.  Many of those in favor of gay marriage speak of future federal judicial actions that will effectively mitigate, if not eliminate, state prohibitions against same sex marriage and civil unions.   To my way of thinking we, as a society, are a long way from achieving a sufficient consensus on the fundamental right of an individual to marry whomever they want.  It’s hard to equate, for example, the right to marry anyone you choose to the right to be told why you are being arrested or the right to worship as you please.   President Obama’s view that defining legal relationships are best left to the individual states rests on sound legal reasoning as well as recognition of the wide split among the states on this matter.

 I would expect the Supreme Court to steer clear of this issue for some time, in large measure by finding that this is a matter best decided by the states themselves. It won’t be the first time this has happened.  Those counting on the Supreme Court to ‘right the wrongs’ of State laws and Constitutional referenda may have a long wait on their hands.

The Real Message Sent By Amendment One

I get it! There are a number of individuals in North Carolina, perhaps a significant majority, that wish to ensure that the only ‘marriage’ recognized by the State is one that unites a man and a woman. These same individuals want to make sure that future legislatures cannot change the current law outlawing same sex marriage: they want the issue settled once and for all. Given the historical context of ‘marriage’ as a religious as well as civil affair , I can understand the desires of those who wish to ensure that the state does not sanctify same sex relationships by allowing such couples to be married.

 But the Amendment we are voting on next week calls for more than a straightforward ban on gay marriage. It states that ‘marriage between one man and one woman is the only domestic legal union that should be recognized by this State’. As such it not only outlaws formal ‘civil unions’-legal understandings that provide the same similar spousal powers and rights that come with marriage- but also opens to judicial interpretation the legality of trusts, wills, and end-of-life directives [which are not private contracts] involving an unmarried partners. It will also invalidate domestic partner benefits offered by some North Carolina municipalities. Thirty states have passed marriage amendments. Ten State amendments only ban same-sex marriage, while another seventeen ban both same sex marriage and civil unions. Although not a lawyer, it appears to me that only two states have gone as far as North Carolina in banning any marriage-like contracts between unmarried persons.

 To my way of thinking, the proposed Amendment thus goes out of its way to send a message to gays and lesbians that they are to be considered second class citizens by the State and, by implication that their interests might be better served by living elsewhere. The Amendment was carefully worded. Its language, while subtle, is stark. What agreements between two men or two women that will be recognized as legal is problematical. Who would want to enter into ‘spousal’ agreements, not knowing whether these will found to be legally binding if challenged in court at some future date. If you want to send a message to gays and lesbians that they are not welcome in North Carolina than by all means vote yes. It is your right as a citizen. If you think the amendment is only about the sanctity of marriage than think again before you vote.

The Two Sides of Liberty

The modern Republican Party has long associated itself with minimizing government participation in economic matters. After all, America was founded by those who had the self confidence to make something of themselves. Economic prosperity, if not actual survival, went to those who were best able to look after their own interests. America was no place for the meek nor lazy.
To many Republicans, today’s government safety nets serve as a disincentive to honest work – a crutch to those who lacked the will to put forward their best effort. It has created a self-perpetuating class of ‘takers’, they argue, who believe they have a right to expect continuing government assistance should they forego the effort to pull themselves up by their own bootstraps. This same assistance, moreover, comes at the expense of those who are willing to work hard and take risks to make the best use of their abilities. The New Deal and Great Society programs, to the view of many on the Right, were but euphemisms for a democratic socialism which they view as an anathema to the American way of life.
This view resonates with many independents, who question the efficacy of many government programs, and who seek limits to government spending and, ultimately, lower tax rates. The inability of the national government to effectively manage its programs or even pass workable laws has given increased traction to the Republican view.
There is, however, another side to the Republican coin, one which may cost the Party substantial support. Republicans do not extend the concept of ‘small government’ across the board. The Right – while trumpeting the economic opportunism and independence of the founding fathers – seems to have forgotten the other reasons leading strong willed individuals to risk everything in coming to America’s shores. Economic opportunity was certainly a factor. Perhaps equally important, was the opportunity to follow one’s personal conscience in making life choices. Americans were able to worship as they wished and to otherwise live their lives without government interference. Individual rights –the key word here is individual- were cherished and protected. Bills of rights were integral to all state constitutions: the Constitution was approved only after its drafters promised to incorporate a ‘bill of rights’ at the first opportunity.
Despite the emphasis of early colonists on ensuring individual liberties, many on the Right believe that America must adhere to a moral code if it is to maintain its core values. Critically, these same individuals believe they have the inside track in defining the ‘American ethic’ that must be protected. These individuals decry Supreme Court decisions that go against their precepts, and challenge the spirit of these rulings by enacting laws that impinge on the personal choices of those who do not share the Right’s view of the “American way”. The spate of laws, both enacted and proposed, to limit choices available to American women are a clear manifestation of the role government is expected to play in protecting (enforcing) the American way.
Europeans fled the paternalism of European princes in order to walk their own path in the new world. They enshrined their personal freedoms in the founding documents of their respective states and the United States. The unifying ethic of the late 1700s was individual liberty. Today’s Americans are not expected to appreciate, respect, nor even condone the life choices made by their fellow citizens. They are expected to respect-and not constrict- the rights of their fellow citizens to make these choices. Failing to do so may result in the irony of people leaving America for Europe in order to gain greater liberty in the conduct of their own lives.

The Religious Vote Goes To......

Rick Santorum has certainly heated up discussions on the proper role of personal religious belief and the church in governing. From wanting to ‘throw up’ when listening to President Kennedy’s 1960 speech on the separation of church and state to alluding to President Obama’s “phony theology”. Although he may regret his choices of words, Mr. Santorum has arguably voiced the views of millions of Americans who share his feelings that our government’s laws and actions should be grounded in Christian precepts.
One can make a persuasive case that extreme care was taken to ensure that America’s national government would not advocate for one set of religious views over another. The issues raised by Mr. Santorum were raised extensively during discussions over the ratification of the Constitution itself. In the end, state Constitutional conventions not only approved a Constitution that only mentions religion in the context of prohibiting religious tests for office, but concomitantly insisted that the first U.S. Congress amend the Constitution to specifically preclude a blurring of secular and religious affairs. They understood that when one mixes religion with politics one gets politics.
This is not to say, however, that governance should not be informed by the religious values held by its individual citizens. It precisely because of this dynamic that Constitutional limits were established regarding the ability of one religious faction to impinge on the expression of the religious values of another.
These limits, however, do not preclude the implementation of government programs that advance one’s religious values. President Bush, for example, was an ardent supporter of faith-based initiatives whereby religious groups partner with the government to provide services to the less fortunate. Analogously, one could argue that many government programs are but an extension of religious outreach. Government funding is used to ensure, for example, that charity –albeit funded by taxpayer dollars- is extended to broad segments of the population. As an example, the government’s food stamp program could be viewed as an admittedly imperfect extension of local religious group participation in food banks for the needy.
If this is the case, shouldn’t citizens vote for those who support government programs that align with their religious beliefs rather than those who argue for a greater formal role for religion in government?
To this end, in 2008 the National Council of Churches- representing over 100,000 local Congregations and some 45 million parishioners- published ten principles for evaluating candidates that it hoped “all Christians - from liberals to conservatives - will study and apply in this election year. These included: ‘foreign policy based on cooperation and global justice’;’ reducing the disparity between the rich and the poor’;’ promotion of racial justice and equal opportunity’; ‘champion environmental justice’; ‘pursue fair immigration policies and speak out against xenophobia’; ‘provide adequate, affordable and accessible health care for all’; and ‘advocate for equal education opportunity and abundant funding for children’s services’.
I would leave it to the reader to decide which political party agenda is best aligned with –in this case- Christian principles. My provocation rests in the belief that voters who are concerned with the role religion should play in government pay more attention to the degree to which government actions are aligned with religious values and less attention to the ‘need’ for closer ties between church and state.

Its Up to the People to Decide

Recently a Yuma Arizona Superior Court judge disqualified a candidate for city council from running for office because of a “large gap” between her English proficiency and that required to serve as a public official. The candidate- who reads and writes English- claims she can understand and answer in English albeit not fluently. As an aside, she graduated from Yuma’s public Kofa High School. But that –as they say- that is another story, entirely.
Where, exactly, does the state get to say who is qualified and who is not qualified to represent their constituents? If, indeed, Ms Cabrera is made less effective because of her language deficiencies in interacting with her fellow city council members, her fluency in Spanish and Hispanic heritage may make her may be more effective in interacting with and understanding the needs of her constituents. If it doesn’t work out then so be it. It seems to me the decision rests with the people regarding who they want to represent their interests –“warts” and all.
There is a reason why the Constitution establishes only three requirements for those who seek to serve in Congress – citizenship, age, and residency. The drafters realized that citizens should not have their rights to choose their representatives further abridged by state actions. The Supreme Court, in 1969, drove this point home in deciding that Congress had no authority to place additional qualifications on its members. Adam Clayton Powell, Jr was a thorn in the side of many conservatives in the House of Representatives, who ultimately refused to allow him to be seated following his 1966 re-election. In the special election subsequently called –while the case was being adjudicated- he was re-elected again by his New York City district, even though he had been stripped of his seniority power by the House.
We can argue about the wisdom of electing a person with limited command of the English language, but analogous arguments can be held about electing individuals lacking a high school diploma or individuals who have recently established residency and have little sense of the lay of the land. Same goes for electing convicted felons, or for individuals who are ignorant of how the government works and the contents of the Constitution. The point established over two hundred years ago still stands – the people should be free to chose the person they wish to represent their interests.

Bridging the Great Divide

David Brooks' recent op-editorial in the New York TImes discusses the great divorce between two tribes in America.

Although the divergence he discusses is distinct from the class distinctions bandied about by politicians, it is a major problem. According the the author, members of the upper tribe have low divorce rates, work hard, and are productive. Members of the lower tribe also work hard and dream big, but live in 'disorganized, postmodern neighborhoods in which it is much harder to be self-disciplined.

Mr. Brooks calls for a National Service Program that would force members of the upper tribe and lower tribe to live and work together. By this means, he opines, the two groups would work together to spread out the 'values, practices, and institutions' that lead to achievement.

I'm not sure that a national service program would be the best answer. I would argue, instead, for a movement away from the segmentation of public education by virtue of magnet schools, charter schools and the like. For much of America's history public schools served as the cauldron for spreading and sharing the values, practices, and institutions that led to achievement. This impact has been muted in recent decades by the growth of charter schools, magnet schools and the separation of students into standard and honors classes. As as former teacher I understand the impetus behind these trends, but - as pointed out in the article - separating out the tribes has put a rent into the American fabric that has long been characterized by a 'melting pot' or, more recently, 'a salad bowel'.

The Republican’s' Pyrrhic victory

In a recent op-editorial, New York Times columnist David Brooks attributes the decline in the attractiveness of liberal philosophy in America to the decline in trust in the government to deliver. As Brooks puts it: “Americans may agree with liberal diagnoses, but they don’t trust the instrument the Democrats use to solve problems. They don’t trust the federal government.” He effectively implies that Americans would opt for a bigger government role if the government could deliver the goods – effective oversight, better education, affordable health care and the like.
His solution is to seriously mitigate the role of special interest groups who unduly influence government decision making to their financial benefit. He suggests that Obama run as ‘someone who believes in government but sees how much it needs to be cleansed and purified’. If the Democrats begin to make processes more transparent and simple, he argues, faith in government will be restored. With faith restored, those who believe in the potential benefits of ‘big government’ will be willing again to vote for those who share these views.
As champions of the benefits of big government, David Brooks argues, it is up to the Democrats to make government work. He is silent on the contributions, or lack thereof, of Republicans to this issue. His observations on the correlation between the decline of Democratic support and the lack of confidence in government per see highlight the essence of the Republican strategy.
Simply put, the party of no has made sure that government does not work and will continue to make it impossible for Obama to make good on any cleansing processes he may propose. Unlike a parliamentary system, our system of government requires compromise in order to work. By refusing to compromise – by compromise I mean meeting the Democrats in the middle --and by abusing filibuster provisions by forcing a sixty vote majority on every Senate decision, the Republicans have effectively emasculated the ability of Democrats to demonstrate that government can be effective.
In the long run this approach may undermine American confidence in the way decisions are reached (or not reached) under our system, eliciting calls for a different form of governance, say one in which government acts in accordance with the expressed will of the majority of voters. In a parliamentary system, the party with the majority of votes controls government decision-making. Under current Senate rules, Senators representing a mere eleven percent of the national population, acting together, could stop any legislation.
Our national government is dysfunctional. Special interests do exert too much power. The Democrats did squander their electoral gains of 2008. The Republicans refuse to effectively cooperate in order to refuse Obama a victory, even when his proposals are consistent with long-standing Republican platforms.
The Republicans have the upper hand. They have muted liberalist support for big government, potentially paving the way for Republican victories at the polls next year where they can continue to downsize entitlement programs. This short-term advantage may prove pyrrhic. Amid all this wrangling, nothing is being done to resolve the nation’s angst over the unequal distribution of wealth and power, its concern over long standing unemployment, or the need to square spending with taxing levels.
It is too easy to put the onus on the party of big government. The blame should be shared with those who would see government fail in order advance their political interests. They forget that they are elected, in part, to stand above the fray and serve the greater, American, interest. Destroying American confidence in the role of government moves this country in a direction that is rife with unintended consequences.