Dreadful Alternatives

by Loren Bliss

I AM STRICKEN by such a painful sense of betrayal, its pangs have not dulled even slightly with the passage of nearly two weeks. On the basis of everything I can discover, the proposed Constitutional amendment endorsed last week by President Bush is a Trojan Horse cunningly designed by its fundamentalist Christian authors to undermine every last vestige of America’s 228-year experiment with liberty, and its clandestine intent is to clear the way for imposition of a theocracy as viciously heavy-handed as anything characteristic of the Taliban.

What I am reporting here are dire analyses by others presumably far more qualified than I to pass judgement on Constitutional matters. The following is an excerpt from libertarian-conservative Andrew Sullivan’s blog on 26 February, the day after the President announced his support for the proposed amendment:

"THE FMA AS TROJAN HORSE: Here's an email from a Republican lawyer who sees the religious right amendment as a device to do far more than just deny gay couples constitutional protection. The amendment is just the beginning of the religious right agenda:

‘Now that opponents and proponents of gay marriage are all riled about the FMA its time to talk about the true impact of including a definition of marriage in the Constitution. The potential impact of inclusion of the FMA will effect every American straight or gay because the FMA is not about gay marriage, it is a dangerous Trojan Horse that could completely redefine the powers of the federal government. As an attorney who is researching this issue, let me explain to the best of my ability, why I haven’t been sleeping well since Tuesday.’

‘Under the Constitution of the United States there is no express right to privacy, rather this right to be free from excessive government interference in our personal lives has arisen from Supreme Court precedent that cites the lack of regulation of intimate relationships and the protections of the bill of rights as the basis for an inference of the right to privacy. The right to privacy, according to the Supreme Court, is found in the penumbras and emanations of these two factors. A shadow of a right, very delicate and now threatened.

‘By including a provision regulating the most intimate of relationships into the Constitution, the traditional analysis that the court has used to limit government power will be fundamentally changed and the right to privacy, if it is not destroyed completely, will be severely curtailed. As a result, decisions like Roe v. Wade, (Abortion), Griswold v. Connecticut (Birth Control), Lawrence v. Texas (Private Sexual Acts), will all be fair game for re-analysis under this new jurisprudential regime as the Constitutional foundation for those decisions will have been altered. A brilliant strategy really, with one amendment the religious right could wipe out access to birth control, abortion, and even non-procreative sex (as Senator Santorum so eagerly wants to do).

‘This debate isn’t only about federalism, it’s about the reversal of two hundred years of liberal democracy that respects individuals. So why isn’t anyone talking about this aspect of it?’

"With luck, this agenda will be revealed as this amendment is discussed and debated. The most important thing to remember is who is behind this amendment: Pat Robertson, Jerry Falwell, Gary Bauer, Robert Bork, Rick Santorum. For them, gays are just the beginning, the soft targets before the real battle. Memo to straights: you're next."

Seeking additional expert opinion, I read the above to a lawyer named David Minikel, who works out of a busy office near Tacoma, Washington, and whose judicial victories include winning one of his clients a rare pardon from President Bush in 2002. Minikel said he agreed that the proposed amendment, if approved, "would open a Pandora’s Box," because until now the thrust of the Constitution "has always been to limit government power, not expand it." Which means, Minikel added, the fears expressed by Sullivan and his correspondent are "legitimate concerns."

Moreover, "the only time the United States ever tried to amend the Constitution to discriminate against a class of people – those who drink – it was a disaster." The 18th Amendment imposed national prohibition; it required the 21st Amendment to repeal it. And the 18th Amendment, said Minikel, "was an aberration" -- apart from that one instance, the function of the Constitution has always been "telling the government you can’t take away our rights."

Astute readers will note that I have gotten this far in this essay without once using the terms "gay" or "lesbian" or "homosexual" in my own remarks. That is because what is happening here is related only incidentally to individual expressions of sexuality or love – which the demagogues of the authoritarian right are using as a kind of latter-day Reichstag Fire to stir up homophobia, encourage gay-bashing and panic the electorate into enacting dire measures.

Thus the proposed federal marriage amendment– a logical outgrowth of the kind of theocratic thinking Ellen Craswell made infamous via her allies’ own web pages. Craswell was the 1996 Republican nominee for governor in Washington state, and her nomination marked the subversion and brazen takeover of the state GOP by a vindictively authoritarian fundamentalist fringe group, a veritable Taliban of intolerance and theocratic intent. Here are some representative samples of Craswell’s ideology:

"As Christians consider their responsibility, there are three vital principles to remember.

"First, government is God's institution! Civil government exists and functions by God's command, not because cave men created a social contract.

"Civil government began in Genesis 9:1-7, when God instructed Noah after the flood. In Exodus 20-22, God through Moses gives a specific pattern for civil government.

"Scripture is full of God's sovereignty and interest in civil government. In Daniel 2:20-21, God removes and sets up rulers. In Proverbs 21:1, he turns a ruler's heart. In Romans 13:1, He ordains civil powers. Clearly, government is not a secular institution but a God-ordained institution.

"A second key principle is that God has every right to direct His institutions. Indeed, Scripture reveals God's will, rules and leadership qualities for the home, the church... and the government!

"God also gives qualifications for leadership, both in the church (1 Timothy 3:1-7) and in civil government (Exodus 18:21). Imagine our state and nation under leaders with these Biblical qualities: ‘able’ and ‘fears God’ and speaks ‘truth’ and ‘hates covetousness’!

"The third vital principle to remember is that secularizing government is an affront to a Holy God! We are often told that government and politics should be secular. But would we allow Biblical Christianity to be excluded from our homes or churches? So why quietly capitulate to arguments saying we should keep God's Word and God's people out of God's institution of civil government?

"We need to petition God for revival before privatization of our faith results in complete secularization of government.

"The role of a civil leader is to enable government to fulfill God's purposes...Having ‘done our own thing’ for decades, we are now suffering the gaping devastation of crime, broken homes, abused and aborted children, sexual immorality, drug and alcohol problems, corrupt government, reckless taxing and spending, warped welfare programs and deficient education...Half-hearted measures will never solve these full- scale problems. The answer begins with a return to God and His ways."

Anyone who is not sufficiently troubled by the Talibanic tone of the material quoted above -- or anyone who merely wants to contemplate the full text of this brazen rationale for theocratic tyranny -- can access the entire manifesto, entitled, "The Biblical Basis for Christians in Politics and Government."

Predictably, the debate over the proposed marriage amendment is already more bitter than anything I’ve witnessed in years – maybe ever. The sheer venomousness of the authoritarian fundamentalists’ hatred of homosexuals is as appalling as it is infuriating, and the fundamentalists’ self-righteous intent to prohibit civil unions merely underscores the extent to which the cancer of religiously motivated intolerance – with all the associated risk of tyranny – is still gnawing at the American body politic.

But would the amendment as proposed in fact prohibit civil unions? Here is its exact wording:

"Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution nor the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

The proverbial fly in the metaphorical ointment lies in the phrase, "marital status or the legal incidents thereof," which includes health insurance for domestic partners, survivors' rights and a variety of other boons that were formerly granted only to the legally married. Extension of those benefits to unwed domestic partners was typically the result of a long hard fight, whether via the courts or labor negotiations or both, and the prohibition against "any...law" nullifies the basis of all those victories. When President Bush attempted to reassure the public the amendment he had endorsed would in fact continue to support domestic partnerships, he apparently did not know of what he was speaking.

Nor are homosexuals the measure’s only intended victims. Prohibition of domestic partnerships could inflict particular hardship on elderly heterosexuals like myself – people retired and on fixed incomes who might choose to live together for companionship but cannot afford the tax hikes and pension reductions that would be imposed by formal matrimony. For this reason, I surely hope the American Association of Retired Persons is paying attention to this controversy. If not – since I belong to AARP – maybe I’ll send the organization’s officers a copy of this column in the hope it will alert them to the danger. It would not be incorrect to label the proposal a compulsory marriage act – an attempt to restructure law so that "the legal incidents" of marriage are available only through marriage itself – which the ensuing debate has already made clear is part of the fundamentalists’ malicious intent.

Moreover, the controversy has of course already again cloven the conservative community into its authoritarian and libertarian factions – a schism of precisely the sort I was discussing last week in "Divide et Impera" but of much greater and more potentially ruinous magnitude. The most important question is how much the split – which grows more acrimonious by the moment – will damage Republican prospects in November. Based on what happened in Washington state in the 2000 elections, when anger at the fundamentalists cost Sen. Slade Gorton (D-WA) his seat and gave control of the Senate to the Democrats, I believe the President’s decision to ally himself with those who would wreck the Constitution and impose theocracy will be a costly one – very costly indeed.

The greatest tragedy is that now we as Americans face a jarringly unsatisfying choice. We are offered John Kerry, who pledges to render us defenseless by dismissing Islam’s 1300-year war on civilization as merely a crime problem, or George Bush, who has cast his lot with those who would pervert America into the Christian version of a Talibanic state. I cannot recall a time in U.S. history when we faced such pivotal questions but were left with such dreadfully limited alternatives. It will not surprise me if voters elect to stay home in droves.

As to the fate of the measure itself, I take a lot of comfort from the words with which David Minikel concluded our conversation: fortunately, said Minikel, the Founders designed the Constitution so that it could not be changed in the heat of passion, and as a result, amendments have been few and far between. A debate of the sort underway now is healthy precisely because it compels people to think – "and when you think about (this proposal), you immediately start getting cold feet."

posted by on March 8, 2004 07:21 PM

Loren, I wouldn't hang your hat on any peg provided by AARP. That outfit is nothing but a shill for the insurance industry, and the FMA, if it outlaws the requirement for employer organizations to provide insurance benefits to domestic partners, will have been a huge boon to that industry. Ergo, I doubt if AARP will oppose the FMA with much sincerity.

What I fail to understand is the reason for the fuss anyway, other than preserving the status quo of the culture, which I favor (see my blog).

There's actually a middle ground in this dispute that makes the draconian FMA unnecessary, and makes the culture-destroying gay marriage a moot point.

That middle ground is to simply remove the right of the churches to perform civil marriage, and declare the marriage contract to be strictly a civil function. The churches would be free to have and perform canon marriages (as different from Shotgun Weddings, *heh*), and such a ceremony would sanctify the civil marriage in the eyes of that church and it's members. Those churches could apply their own canon law to such ceremonies.

Applying this principle in a Constitutional Amendment would at once end the divisive situation we have now, and confirm without doubt the Establishment Clause of the root Constitution.

Posted by: Rivrdog at March 9, 2004 06:57 AM

The one thing I find interesting is that you are putting all of the onus on the 'theocratic' conservative, implicitly absolving those actively undermining one of the basic tenets of Western civilisation.

Under the guise of 'liberty' you concur in the unwarranted, unjustified redefinition of marriage. The 'Trojan Horse' is the claim of those with no vested interest in the continuance of society that marriage is a personal matter.

No civil rights are violated by the current definition of marriage. Any homosexual is free to get married; what they are not free to do is indulge in a sham with a member of the same sex. That this frustrates certain people is an indication of the childishness of the frustrated, not a mandate to eliminate a venerable social institution.

Your professed fear of activist judges extending the reach of any Constitutional Amendment is disingenous; it is activist judges exalting their personal and/or political preferences into the realm of law that has brought us to the current pass. Having watched the Supreme Court of the United States purposefully ignore the explicit text of the First Amendment, you should put your fears to rest - the Constitution of the United States is now the plaything of judicial whim.

Posted by: aelfheld at March 22, 2004 03:41 AM