Tuesday, October 7, 2008


Here is an unfinished thought, stemming from current political issues and combined with the things that my kiddos are studying in American history class, namely the writing of the Constitution.

The First Amendment to the Constitution was ratified with the rest of the Bill of Rights in 1791. The Anti-Federalists, or those who opposed the proposed government under the Constitution, held up the ratification of the Constitution because there was no bill of rights, as had been written into several state constitutions during the Revolutionary War. (Which, incidentally, was not that revolutionary. But that's a story for another time.) The position of the Anti-Federalists was that since there was no list of specifically protected rights, the new government of the United States would be prone to morphing into a authoritarian state. They were concerned, though not in these words, about the concept of power causing corruption. The Federalists countered that with a list of specific rights, perhaps the government would feel free to violate any and all rights NOT enumerated in the Constitution. The Anti-Federalists won that argument and ratified the Constitution with the agreement that the new Congress, when they were seated, would take up the issue and pass a Bill of Rights onto the states for addition to the Constitution. The Congress passed 12 amendments and sent them to the states in 1789; 10 were ratified in 1791.

I'm a big fan of the Bill of Rights -- all of them -- but what I want to address here are the first and fourteenth in relation to my current political wonderings.

The First Amendment, as we all know, contains five freedoms: speech, press, religion, assembly, and petition. The clause I'm specifically thinking about deals with religion and has two parts: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

And then here's how this is all connected to politics: there are several states which this year, on their ballots in November, will be asking their citizens to pass a ban on gay marriage. California, Florida, etc. What gets me is thus: many of the supporters of these bans are using religious rhetoric to encourage people to vote for such a ban. But I'm thinking that would violate the establishment clause, if such reasoning were explicit in the amendments. Religious beliefs were used as justification for years in the prohibitions against mixed-race marriages and those prohibitions were overturned by Loving v. Virginia in 1964. The Supreme Court also cited the equal protection clause of the Fourteenth Amendment:
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
The text of the Fourteenth Amendment actually makes no note of race:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
I'm no Constitutional scholar, I'm thinking that such bans will eventually be found to be unconstitutional by the Supreme Court of the United States, if there is to be any fairness in this world.

Followup thoughts on what exactly the Founders were thinking in regards to the establishment of religion and the fact that there's no mention of god in the Constitution and most of the founders were Enlightenment-types who were Deists.

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