Gay Marriage Bans, Religious Freedom and the Battle of the Armrests

by Nomad

The Armrest Story

About fifteen years I had to fly back to the US, having learned my mother was ill. I wasn't in the mood for arguments. I really wasn't in the mood for traveling.  I had long since lost my thrill of air travel. It's now something I put up with but seldom enjoy. I just pray it will be uneventful. That's the best I can hope for.

Part of the problem is that I can't stand being packed in close quarters with strangers. If you share this particular dread, then you know that flights are a whole lot of un-fun. 

On this particular flight- from Izmir to Istanbul- the first leg in was to be 16-hour flight, I was unfortunate enough to be sitting next to a classic nightmare passenger. Almost anybody who has traveled has had at least one experience with one of the countless varieties of detestable types.

In this particular case, it began as a kind passive aggressive elbow battle. Picture this: to my right, I happened to be trapped with a woman who easily weighed 350 lbs. Even with the advantage of both of her armrests, she was stuffed in her seat as tight as a cork in a wine bottle. 
To my left was a guy (let's just call him "the creep")who insisted as his god-given right not to allow me to place my elbow on the armrest. It was his territory and that was that. This left me feeling like I was being run through a pasta maker.

At first, the battle started with forearms made of steel and constant pushing. Gritted teeth and oodles of seething. In the hour-long flight, it eventually escalated into a shouting match. Believe me, I am- or used to be- the person chosen "least likely to make a scene in public."

Finally, the creep blasts me in Turkish with something like "You are being selfish! You want to have both armrests!"

By being loud and aggressive, he seemed to be trying to "win" his armrest by making as big as scene as possible. He was doing a pretty good job at it too.

The flight, you will be pleased to hear, concluded without bloodshed or broken bones. No shots were fired and our daggers remained sheathed.   

Later, as I thought about the annoying confrontation because, I suppose, what the creep said bothered me. I've  never been shouted at on a plane and I've certainly never had to fight over an armrest.
A day or so later, I told the story to a friend of mine and she said,

"But, wait a second, wasn't he the one who wanted both armrests? I don't get it. Wasn't he accusing you of the same thing he was doing?"

A Letter to the Editor

This incident came back to me when I read a recently letter to the editor of the Dallas Morning News. Anita Goodspeed of Dallas responded to a recent May 7 op-ed piece entitled "Religious Freedom, or Selfishness?"

The whole column seems to assume that same-sex marriage is a religious, spiritual matter. But let's remember that the Supreme Court can make rulings about civil matters, but does not have the authority to rule about spiritual matters. If a gay couple wants to believe their marriage is a religious union ordained by God, they have a right to believe that. But they do not have a right to tell me I have to believe that. The Supreme Court does not have the authority to tell me I must believe that. I believe the only marriage ordained by God is the union of one man and one woman. I do not want to impose this belief on the gay community. They are free to believe whatever they want. But I, too, have that same freedom. It all comes down to the fact that the Supreme Court ruled that same-sex marriage is a legal, civil union. It did not rule that same-sex marriage is a religious, spiritual union ordained by God. It simply does not have the authority to speak for God.

Clearly, there is a misunderstanding what the Supreme Court 2015 ruling in Obergefell v. Hodges actually said. Anita has been misinformed.

In that 5-4 decision, the high court held that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

In fact, it was not merely the Supreme Court. appeals court rulings from the Fourth, Seventh, Ninth, and Tenth Circuits on state-level bans on same-sex marriage all said the same thing, These bans were unconstitutional. Had not the Sixth Circuit ruled such bans were constitutional, the Supreme Court would not have been involved at all.

After lengthy deliberation, SCOTUS justices agreed with the majority of appeals courts. If the state authorities wish to legally recognize one definition of marriage, then it must also show compelling reasons why it refused to recognize same-sex marriage.

Outside of personal beliefs, the states tried but could not pass that critical test necessitated by the 14th amendment.
Basing the same-sex marriage bans solely on the majority's religious beliefs might sound logical and fair but the Constitution demands that religious beliefs be left solely to churches and the individual consciences. The state legislatures cannot pass laws which endorse a particular religious viewpoint.

According to the high court, "an individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act", for "fundamental rights may not be submitted to a vote; they depend on the outcome of no elections."

Referendums on same-sex marriage were always constitutionally illegitimate. For example, Oklahoma Question 711 of 2004 which that defined marriage as the union of a man and a woman was declared unconstitutional by US District Court for the Northern District of Oklahoma. Again, on July 18, 2014, the United States Court of Appeals for the Tenth Circuit ruled that Oklahoma's ban was unconstitutional.
On October 6, 2014, the Supreme Court of the United States rejected Oklahoma's request for review, overturning all state laws banning same-sex marriage.

A year later, and the deal was done. Same-sex marriage bans were disappeared in a puff of judicial smoke.

One more thing to add, if even a nationwide referendum were held today, same-sex marriage would be approved by the majority of Americans. A recent Gallup poll showed that support for gay marriage has gradually increased over the past two decades, reaching majority support with new groups, as it did with senior citizens in 2016 and Protestants this year.  Sixty-four percent of U.S. adults say same-sex marriages should be recognized by the law as valid.

Anita might be surprised to learn another thing Gallup found. Republicans' support for gay marriage is also at a new high and could trend toward majority support in the near future. 

Republican Tommyrot in Texas

That may be true in theory but the reality on the ground says something different.

The platform of the 2016 State Convention of the Republican Party of Texas defied the Supreme Court decision and voiced support for the so-called Family and Defense of Marriage. 

We support the definition of marriage as a God-ordained, legal and moral commitment only between one natural man and one natural woman.

We support withholding jurisdiction from the federal courts in cases involving family law, especially any changes in the definition of marriage.

We shall not recognize or grant to any unmarried person the legal rights or status of a spouse, including granting benefits by political subdivisions.

The Republican Party of Texas also called for overturning Obergefell v. Hodges

We believe this decision, overturning the Texas law prohibiting same sex marriage in Texas, has no basis in the Constitution and should be reversed, returning jurisdiction over the definition of marriage to the states. The Governor and other elected officials of the state of Texas should assert our Tenth Amendment right and reject the Supreme Court ruling.

That mention of the Tenth Amendment is actually all a lot of tommyrot. In case you haven't read the Constitution today, the Tenth Amendment states that the federal government is limited to only the powers granted in the Constitution. 

In point of fact, this isn't the first time states have tried to assert exemption from various federal regulations, especially in the areas of labor and environmental controls, using the Tenth Amendment as a basis for their claim. 

That strategy has never had much success. 

Back in 1941, the case of United States v. Darby Lumber drew ice cold water on that ploy. In addition to that, in such rulings as the Supreme Court has explicitly rejected the idea that the states can nullify federal law.

For example, in Cooper v. Aaron (1958), the Supreme Court ruled that federal law prevails over state law due to the operation of the Supremacy Clause, and that federal law "can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes ..." 

The Supremacy Clause establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land. If something is unconstitutional at a state level, no amount of fiddling or bluffing is going to rectify that.

*   *   *

As if that wasn't anarchist enough, the Texas Republicans also urged Congress to withhold Supreme Court jurisdiction in cases involving abortion, religious freedom, and the Bill of Rights. As farfetched as it might sound, there are, in fact, two ways this could be achieved. One, through the long and problematic process of amending the Constitution.
The second option is not widely recognized. It is based on the fact that Congress has control of lower federal court jurisdiction stems from article III of the United States Constitution, which provides: 

"The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."

Normally, the Supreme Court is.. well, supreme but Congress also has the' power to make exceptions to Supreme Court jurisdiction. Both options are long shots, to say the least.
Still, Texas Republicans, like Anita, are free to put their faith in whatever they like.

Equal Dignity

In the majority opinion in Obergefell v. Hodges, SCOTUS went further. According to that ruling, these same-sex bans - by reducing the definition according to the strict religious interpretation, disrespect the institution as a whole.

It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

So, angry Anita has the religious freedom to believe whatever she wants. The courts did not mandate that anybody believe or not believe anything. It simply limited the ability of the state to restrict the definition of marriage to suit the tenets of Christianity.

If Ms. Godspeed wishes to believe that that Mary was a virgin when she gave birth to a God in human form, nothing is preventing her. She can also fondle snakes to show her devotion to the faith. That's certainly her right. That's what religious freedom is really all about.

What isn't all about is using the flawed politics of the states, like Texas, to impose those ideas on others. Citing religious freedom doesn't give anybody the automatic right to use state laws to impose one's religious beliefs on all of society. This may not be true in Saudi Arabia or Iran but, at least, for the moment, that's how it stands in the US.

Anita is quite right to say that the Supreme Court does not have the authority to speak for God. But neither do the lawyers and legislators in Austin.

Experience has shown us that religions, when they move men's consciences, can take care of themselves and do not need the interference of politicians. That's something Ben Franklin once noticed.

When a Religion is good, I conceive that it will support itself; and, when it cannot support itself, and God does not take care to support, so that its Professors are oblig'd to call for the help of the Civil Power, it is a sign, I apprehend, of its being a bad one.

Like armrests on a plane, a civilized society is a common space which can only exist through an unspoken agreement to share and to compromise.
Otherwise, every question will end up in fistfights and nobody will get anywhere without arriving with broken front teeth and a black eye. 

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