Discrimination and the Constitution
My son David's wife e-mailed me after reading Onward, Moderate Christian Soldiers by former Senator John Danforth in the 6/17/05 NY Times. This is my response:
Catherine,
It was so nice to hear from you. Thanks for your comments on the article.
from your e-mail: "I agree with the article as it states that in the Gospels love takes precedence when it conflicts with laws, but I don't think you can stretch that to say that as long as love is present...”anything goes.” I disagree with the author’s statement that “for us, the only absolute standard of behavior is the commandment to love our neighbors as ourselves.” How can he mean that? We as sinners are forgiven for our wrongs and are not condemned by God because of Jesus’ death on the cross, but there are standards of behavior. There are still rights and wrongs."
"We hold these truths to be self evident, that all men are created equal. That they are endowed by their Creator with certain inalienable rights. That among these are life, liberty and the pursuit of happiness."
Yet our liberty is restrained when it interferes with the liberty of others. We put a thief in jail because we "love our neighbors" and don't want their property stolen.
We discipline our children for their misbehavior so that they might grow up to do right not wrong by their neighbors. Yet we recall that to discipline means to teach, not to punish. We discipline out of love, not anger. We discipline the thief hoping he'll change his behavior.
If our behavior harms no one else, then we are at liberty to do it. As Jefferson said, "If it doesn't break my leg or pick my pocket, then it's not the government's business."
So all our laws are (or should be) grounded on the love thy neighbor principle since they protect our neighbors from loss or harm.
From your e-mail: "Clearly, the article is focused on the issues of faith and political agendas. I have some more thinking to do to gather my arms around the whole issues....as I'm not the most politically savvy. However, I do believe that Christian politicians have an obligation to God to do all in their power to preserve the moral state of our society."
Christians, like all citizens, have the right and duty to express their opinions regarding public policy. Yet all laws are subject to constitutional limits.
Our Constitution grants certain powers to the government. The 9th and 14th amendments remind us that all other rights are retained by the people. If a conflict arises concerning a law which denies rights to a specific class of people, then it is up to the state to prove that there is a rational basic for the law in support of a compelling state interest. Does it prevent harm or loss to other members of the public in some way?
Religions are a source of moral instructions. Thou shalt not kill, thou shalt not steal fit into our constitutional requirements since they are designed to prevent harm or loss to others. The first three commandments are not in the laws since the first amendment prohibits the government from endorsing one religion or religion in general. At the same time, the first amendment allows all religions to prosper on their own. Similarly, laws that stem from religious beliefs alone, which serve no secular purpose, are not constitutional. Prohibiting people from eating pork or working on Sunday as the Bible commands are not permitted since they serve no useful purpose otherwise. One can preach, teach and beseech as one wishes, the first amendment allows for that too, but one cannot use the power of government to force one's purely religious views on everyone, even if one's views are held by the majority.
States have laws that discriminate against gays in various ways. When these laws reach the courts, the state has to present a rational basis for the laws. They have to show how this discrimination serves a compelling state interest. It soon becomes all too clear that politicians passed these laws to cater to the prejudices of their more conservative religious constituents because there is no demonstrable secular basis for these laws, whatsoever. If something causes no harm or loss to anyone, there can be no law against it.
To the contrary, the 416,000 children (2000 census) who live with gay and lesbian couples are being harmed by this unwarranted discrimination since they do not have the same rights and protections that children of married couples have.
Since five State Supreme Courts and several US Appellate Courts have found no Constitutional (secular) justification for laws that discriminate against gays, and more will inevitably follow, an amendment would have to be passed which would write discrimination into our Constitution for the first time in our country's history! Of course this would be humiliating. It's like saying that blacks were worth 3/5 of a person. It saying that gays and their children don't have the full rights of citizenship that the rest of us have. It shows the animous toward gays that Justice Kennedy spoke of in the Romer v Evans decision.
In His example of the good neighbor, Jesus told us of the Samaritan, a person who was dispised by almost everyone in his day. How apt a description of how gays are treated by many in our own time. "Who was a good neighbor to this man?" Jesus asked. "The one who showed mercy," the lawyer replied. "Go and do likewise," Jesus told him.
This seems pretty clear to me. Sometimes I wonder, what part of "love thy neighbor" do some people not understand? Love to both, Bill
posted by Bill Ware @ 3:10 PM
5 Comments:
We discipline out of love, not anger. We discipline the thief hoping he'll change his behavior.
If our behavior harms no one else, then we are at liberty to do it.
There is a payment, an economy all around us. And every action comes at a price. You can even draw up good and evil on this axis. Evil (to me) is when you make others pay the price for your actions. Good is when you get what you want at the price you want, paying for it yourself. Good and evil are more than this, but it is sufficient to show that this is a proper moral axis.
When I say price, I should say that I mean exclusively just the consequences of the actions. Not the monetary cost in doing something. Nature is a harsh extractor of consequences. Often it would sooner kill someone than let them learn and reform.
What government does is try to inhibit people from falling bankrupt before the the harsh judgments of nature, or by having them try to abuse others for their gain (i.e. have other people pay). I call this the doctrine of replaced consequences. Because government can't raise the dead, undo abuse, etc... it tries to intervene before that happens or continues to happen and exacts its own contrived set of consequences.
So all our laws are (or should be) grounded on the love thy neighbor principle since they protect our neighbors from loss or harm.
The term "an eye for an eye" is a pronouncement of equality that is as old as civilization. King Hammurabi used that language anciently to describe enforcement of equality wherein evils done by one individual to another were punishable by returning the same evil to the guilty party. Moses imposed such a law in Israel also as "an eye for an eye and a tooth for a tooth." It is repeated three times in the Torah.
To societies waking up to the notion of civilization, "an eye for an eye" was easy to understand and easy to enforce. After all, how many quatloons is an eye worth to its owner? How much cattle is adequate reparation for the loss of a hand? It is much easier to deal in this most bloody currency of human flesh to ensure equality than barter an exchange rate.
Gandhi is reported to have said, "an eye for an eye makes the whole world blind". In a language as marvelously pithy as the original statement Gandhi provides the best dissertation on the benefits and problems with the moral of equality that has ever been given.
On the surface we can interpret Gandhi as pointing out how such a law is problematic on a physical and real level. Many people were left blind and without hands. And in a society where every eye and hand was valuable in helping ensure survival of families and communities, everyone suffered.
On a higher level though there is a metaphorical blindness that provides additional depth to Gandhi's statement. Ever heard the expressions; "blind with rage", "blind fury", and "blinded by jealousy"?
Each of these sayings describe a situation where people's emotions drive them faster than they can see. Faster than they can see everything their actions will do. Faster than they can see the ramifications their philosophies would have if widely adopted by society. They are truly blind because cannot see the ramifications beyond their immediate selves.
And therein lies the problem of "an eye for an eye". While meant to be a fertile ground to teach the ramifications of your actions with personal experience, it is nourishing to weeds of selfishness born from seeds of jealousy.
You see, though a useful task-master for emerging societies, such vindictive and forced equality in the name of justice is not the most excellent way. And Gandhi was not the first to discover its shortcomings. For about the past two millenniums, many moral leaders have taught a higher law. A law that supersedes equality? Well yes and no. 'Yes' in that it is a law that supersedes the "eye for an eye" accounting of equality, but it does not replace the spirit and meaning of equality.
From Christ to Buddha, a code has distilled in the echelons of societies all over the world that describes a justice that achieves more opportunity and more civility. These morals seek to directly remedy and reduce the causes of violence; rage, jealousy, fury, etc...
Our Constitution grants certain powers to the government. The 9th and 14th amendments remind us that all other rights are retained by the people.
This is an egregious interpretation of the 9th ammendment which mearly states that the lack of enumeration of rights cannot be construed to mean those rights should not be protected.
More specifically the 10th ammendment deals with where powers and rights unspecified lie, and it places them on the states and people.
States have laws that discriminate against gays in various ways. When these laws reach the courts, the state has to present a rational basis for the laws.
So far, not even in Massachusettes has homosexual lifestyle ever been used denoted a legal classification of individuals. And it cannot as there is no scientific test, let alone legal test that could be imposed to discover such.
To the contrary, the 416,000 children (2000 census) who live with gay and lesbian couples are being harmed
It is the onus of the individuals being harmed to show that they are being harmed (as well as show they are a classification of society).
"So far, not even in Massachusettes has homosexual lifestyle ever been used denoted a legal classification of individuals. And it cannot as there is no scientific test, let alone legal test that could be imposed to discover such."
Colorado Amendment 2 defined homosexuals as a specified class of people. See Romer v Evens in regard to Colo. Const., Art. II, 30b.
There is a scientific test for sexual orientation that is used to seperate people into different experimental groups during clinical studies.
Colorado Amendment 2 defined homosexuals as a specified class of people.
Remind us what happened to Amendment 2, and why it was overturned?
Justice O'Connor reminds us in her concurrence of Lawrence that, "And in Romer v. Evans, we disallowed a state statute that "impos[ed] a broad and undifferentiated disability on a single named group"--specifically, homosexuals. 517 U. S., at 632. The dissent apparently agrees that if these cases have stare decisis effect, Texas' sodomy law would not pass scrutiny under the Equal Protection Clause, regardless of the type of rational basis review that we apply. See post, at 17-18 (opinion of Scalia, J.)." Also she points out to us that "[i]n Romer v. Evans, we refused to sanction a law that singled out homosexuals "for disfavored legal status."
Further more, in regards to marriage and equal protection she points out that: "That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations--the asserted state interest in this case--other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group."
There is a scientific test for sexual orientation that is used to separate people into different experimental groups during clinical studies.
Which state requires this test to discover the homosexuals among us? The answer clearly is none. Why is that?
Well, because as the point remains "there is no scientific test, let alone legal test that could be imposed to discover such."
Many including hardcore homosexuals actively chafe at that test because as Pavlov showed, arousal can be trained response. It does not detect inborn unalterable homosexuality which many (including the judges in Romer) claim homosexuals as a class to be.
That science has a way of making due the best they can in order to provide standardization is no political tool. You have a long row to hoe to say that test works well for discovering/defining who is and who isn't homosexual.
You'll do well to keep the points you quote and counter in confluence, lest you continue to create nothing more than trivial challenges to them.
There is no need for a test, because no one should be discriminated against due to their sexual orientation. That's the whole point.
The point remains, there is no test already. Marriage does not discriminate, it integrates.
Post a Comment
<< Home