Thursday, June 09, 2005

A Fisk of Crain on Perry

While more often than not I tend to agree with Chris Crain, the Executive Editor of the Washington Blade and Editorial Director for Window Media, the nation's largest gay and lesbian newspaper publisher, in his blogpost from Monday concerning the aforementioned bill signing by Texas Governor Rick Perry, he makes several statements with which I have some real problems.

The event was held in the school's gymnasium, but the message was crystal clear: the state of Texas is enshrining into law the particular religious beliefs of evangelical Christians. The U.S. Constitution speaks to this issue, in the First Amendment, which provides that our government cannot establish any particular religion into law.

True, but it does not preclude establishing a moral view that happens to be common to several religions into law, including evangelical Christianity, Catholicism (thank you, John Kerry), messianic and conservative Judaism, and Islam. If Crain's argument were taken at face value, banning murder or crimes against property would be an "establishment of religion" because they're covered in the Ten Commandments, the Quran, and elsewhere.

The reason the Establishment Clause exists -- indeed, why it's CALLED the "Establishment" Clause -- is because our founders were familiar with the "established church" in the European sense, such as the Church of England -- a situation where one dominant religious denomination enjoyed legal and financial privileges denied to all others and in which membership was a prerequisite for full rights as a citizen (holding office, voting, etc.) The point was not to completely ban religious thought and philosophy from government, but to prevent the creation of a similar "Church of the United States".

Next up:

The reason the U.S. Supreme Court struck down Texas' sodomy law — and the reason that state supreme courts in Hawaii, Alaska, Vermont and Massachusetts have struck down laws limiting marriage to opposite-sex couples — is that these anti-gay measures are motivated by nothing more than moral disapproval of homosexuality. Perry's bill signing fills in the blanks — as if we needed them filled in — about the source of that moral disapproval.

OK so far. However, Chris creates a problem in the very next paragraph.

Religious faith groups, including Christian denominations, differ on the issue of gay marriage, and civil marriage equality would not require any church or synagogue to marry a gay couple. By voting to give legal effect to the religious beliefs of the majority, the Texas Legislature violated the First Amendment's establishment clause and the U.S. Constitution's guarantee of equal protection to gay Americans.

Chris makes the mistake of saying that the fact that religious groups differ on the issue of gay marriage means that Texas's action that mirrors the religious beliefs of the majority is a violation of the First Amendment. Again, the logic breaks apart -- since some religious faith groups, like the Church of Satan, sanction ritual murder, does that mean that laws against murder, since they mirror the religious beliefs of the majority, are a violation of the First Amendment?

Unfortunately for Chris's argument as well, Justice Sandra Day O'Connor's concurring opinion (beginning on page 23) in the case of Lawrence v. Texas says thus concerning the Constitution's guarantee of equal protection:

That this law (ed. the Texas statute prohibiting sodomy) 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.

This argument that the Equal Protection Clause does NOT cover same-sex marriage is strengthened by decisions made by Federal courts and military courts relative to Lawrence that state that only private, consensual conduct is protected. Anything else that can be construed to be even remotely public is not, such as polygamy, the selling of sex toys, heterosexual sodomy -- as well as, most obviously, gay adoption (by the Supremes themselves, no less) and -- surprise! -- same-sex marriage.

The message being sent is that states are perfectly within their rights to regulate public conduct related to sexuality, which would include gay marriage. While you might argue that the intent of the Texas statute is more to discriminate against gay people than it is to protect traditional marriage, you would have to prove that that was the only reason -- and the Supreme Court has already shown that a) it casts a jaundiced eye on "intent" relative to public conduct and b) believes there are legitimate reasons for states denying same-sex individuals and couples benefits.

In short, Chris, we need to stop sending mixed messages as a community. You can argue all you want about how states banning gay marriage is mean and evil and violates the Constitution, but you'd better not turn around and promote as pro-gay and gay supportive people who praise voters for banning gay marriage and state unequivocally that no state should have to recognize gay marriage if they don't want to do so. The fact that antigay state constitutional amendments are passing at a dizzying pace and by wide majorities should be more than enough proof that people are getting the latter message and not hearing the former.

Finally, though, Chris, I think this was your most howling error in the entire post.

Perry's decision to sign an anti-abortion measure at the Christian school along with the gay marriage ban is an important reminder of how abortion is essentially a gay rights issue.

Measures passed to restrict abortion rights are, at their core, motivated by the same conservative Christian religious beliefs as anti-gay measures. Perry made that clear when, signing the measure, he said, "We may be on the grounds of a Christian church, but we all believe in standing up for the unborn."

In fact, the parental consent measure was ostensibly designed to protect minors from making an important decision without their parents' input. Perry's willingness to speak to its true motivation — conservative Christian religious views about the beginning of life — should hasten the law's demise in the courts.

At this point, Chris, I respectfully ask you to shut up before you get the rest of us killed. The only connection between gay rights and abortion rights is that, without abortion rights groups' funding, NGLTF and HRC would be back to McDonald's in storefront offices instead of caviar in the Taj Mahal. Lifestyle financing does not a linkage make; in addition, when it apparently is not antigay, at least according to Joe Solmonese, for an abortion rights group to give money to a supporter of the FMA because she supports abortion, one wonders whether this linkage is more harmful than beneficial.

Furthermore, on a purely common-sense basis, as blogger Citizen Z points out, the previous law was sheer lunacy -- a minor could not get her ears pierced or get a nonprescription painkiller from a school nurse without parental consent, but she could have a major medical procedure without them being any the wiser. In addition, polls show that 81% of adult Texans support parental consent, including almost 80% of African-Americans and 76% of Hispanics. Brilliant tactical maneuver, Chris; let's link gay rights with something that an overwhelming majority of people across the board oppose -- which is why I think Perry let it be known that the amendment, which didn't need his signature, would be "discussed" at the event, thus ensuring that gay rights activists would show up without thinking and be linked with the abortionists.

Finally, Chris, this may come as a shock to you, but not all queers support abortion, myself included. I myself support both parental notification and bans on abortions except in the case of nonconsensual sex (rape and incest) or if the mother's life is in imminent physical danger. Furthermore, I find your insinuation that failure to support abortion rights means I don't support gay rights to be both incorrect and insulting.

This should make for some interesting responses.

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