Saturday, June 29, 2013

Fifth or First?

Many of us are celebrating the U.S. Supreme Court’s recent decisions regarding same-sex marriage, which in one case struck down the absurd Section 3 of 1996’s Defense of Marriage Act (DOMA) thus entitling  same-sex couples to Federal benefits, and in the other effectively allowed same-sex marriages in California by leaving in place a local trial court decision.   No doubt, the gay marriage movement has gathered a head of steam, and hopefully will continue to garner much needed victories in other venues.

The always offensive and now unconstitutional Section 3 of the DOMA simply states:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

The Court found Section 3 unconstitutional under the Fifth Amendment.  Justice Anthony M. Kennedy, writing for the majority:

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the state, by its marriage laws, sought to protect in personhood and dignity.  By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.

Although the “equal under the law” argument as presented by the Court is valid and relevant, I would have liked the Justices to go further, since in my view Section 3 violated not only the Fifth Amendment, but also the First Amendment, which reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Many religions accept and celebrate gay marriage.  Others do not.  For an Act to define marriage the way some religions do violates the First Amendment in two ways.  First, it “establishes a religion” by making law a concept only espoused by some religions.  In addition, it prohibits the free exercise of the many religions that accept gay marriage.  I’m puzzled by the reluctance of the Court to see this as a First Amendment issue as well as a Fifth Amendment issue, particularly since the most vocal opponents of same-sex marriage oppose it on religious grounds.

Perhaps this reluctance is somehow related to the many other clear violations of the “religion” portion of the First Amendment that continue to exist unabated.  For example, the phrase “In God We Trust”, which appears on our currency, was adopted as our National Motto in 1956 (by the way, it was adopted in a Cold War effort to distinguish the U.S. from the officially atheist Soviet Union).  How is this motto, inherently offensive to those of us who do not believe in God, consistent with the First Amendment?

Prayers and invocations are de rigeur at presidential inaugurations, and yes, they are usually multi denominational, but no matter, they are religious in nature, and therefore have no place in a Federal Government ceremony.  Many people seem to think that as long as diversity of religion is acknowledged, religious freedom is being respected.  That is simply not the case.  Freedom of religion also means freedom from religion.

The Pledge of Allegiance, which opens congressional sessions among many other events, reads:

I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all. [emphasis mine].

The words “under God” were not part of the original pledge as written by Francis Bellamy in 1892.  They were added in 1954, by President Eisenhower, who had been baptized a Presbyterian just a year before he orchestrated the modification, which was suggested by George MacPherson Docherty, a Presbyterian pastor.  How is adding this language to the Pledge not a gross violation of the First Amendment?

There are countless other instances of clear First Amendment violations that are inexplicably allowed to continue, but the last one I’ll mention here is that religious institutions are not taxed by the Federal Government.  The Treasury forgoes as much as $71 billion a year due to this blatantly unfair policy.

Religion is certainly a polarizing matter, and the political coverage afforded by appearing to be devout is amply demonstrated by the politicians themselves, who never fail to end a speech with the offensive “God bless” this, and “God bless” that.  Understandably, no one in power seems to have the courage to advocate a more strict enforcement of the First Amendment, which is regrettable, since in addition to ending all sorts of objectionable practices, it would require the removal of religious considerations from the debates surrounding issues like same-sex marriage, abortion, scholastic curriculums and many others.  And what a wonderful world this would be.