Well, if all goes according to plan, our brilliant leaders in Congress will this week set about attacking yet another of the most important problems facing America today. No, I’m not talking about a plan to make health care affordable for everyone, or a plan to minimize our dependence on fossil fuels, or even about a plan to build more than one evacuation route out of Florida. No, the Senate has declared that the single most pressing issue of the week is the right of law-abiding citizens to get married.
The Senate will begin debating the Gay Marriage Amendment this week. Yeah, yeah, I know what you’re thinking: Not another editorial on that! Yes, but I’m not going to waste my time explaining how discrimination is un-American or how homosexual marriage is not going to result in the wrath of God smiting America. My take on the Gay Marriage Amendment is going to look at it from a perspective that hasn’t really been given the focus I think it should. There are several important issues that have gotten lost in the shuffle of religious extremism and homophobia.
First off, I want to take a look at the Constitution of the United States of America. There have been twenty-seven amendments to our basic law of the land. Very few of those amendments have outlawed a specific action that could be undertaken by private citizens. In fact, very few amendments have been geared to a single specific action whatsoever. The beauty of Constitutional amendments is that they leave room for interpretation. Only one amendment has ever repealed a previous amendment. And guess what kind of amendment it repealed? One that specifically made it illegal for private citizens to do something.
The 18th amendment to the US Constitution expressly outlawed the manufacturing, importing and exporting of alcohol in 1919. (Contrary to popular opinion, it was never actually illegal to merely drink alcohol during prohibition.) In 1933 the 21st amendment essentially annulled that law, making it as though it had never existed. The Constitution has only been used once to make a specific and unambiguous deed illegal. It was not just a mistake, but a bona fide debacle that should have become an object lesson in Constitutional politics. Of course, that would imply that politicians know history, and most of us can clearly see that isn’t the case. The Constitution is not there to specify certain laws, it is there to provide a backbone of legality ensuring that those laws do not restrict fundamental rights of citizens, as well as set a democratic basis for the government. Why do you think Supreme Court decisions are hardly ever unanimous? Because the Constitution allows for a vast expanse of interpretation. A Gay Marriage Amendment leaves no room for interpretation.
Or does it? The specific text of the Gay Marriage Amendment would declare marriage to be this: The union of a man and a woman. Seems pretty straightforward, doesn’t it? As proponents are fond of glibly quoting when at a loss to respond logically, God made Adam and Eve, not Adam and Steve. Oh, it seems as though I’ll never stop laughing every time I hear that one.
But when you stop to think about how those words could become the law of the land, it starts to look a little scary. Marriage shall consist only of the union of a man and a woman. Hmm. Fifty years ago that would have worked with little or no problem. But today? Let’s consider some possibilities.
Under those terms would that mean that a man who has had a sex-change operation could legally marry another man? Would it mean he could marry a woman? What exactly is the legal gender of someone who has had a sex-change operation? Are they legally considered the gender to which they were born, or the gender to which they changed? Is there a federal statute covering this issue, or is it left to the states? And if one state says one thing and one state says another, how does that affect the right to get married under the Gay Marriage Amendment?
What about pre-operatives? You know, those who may have had hormone therapy to change their appearance, but haven’t as yet had surgery to redefine their genitalia? Even without surgery many women pass for male and many men pass for females. If you’ve ever seen a female impersonator on TV you know it’s sometimes impossible to tell the difference. Of course, the question of gender in these cases is moot, but a problem still exists. In fact, the biggest problem facing the Gay Marriage Amendment may apply to these circumstances.
If you or I can’t tell the difference between a “real” male or female and cross-dressing male or female, how can a clergyman or judge or boat captain? And since we all know that identity theft is becoming more and more prevalent, not to mention easier, what’s to prevent a person who desperately wants to marry the love of their life from getting some identification papers declaring him or her to be the opposite gender? How many marriages may be performed and legalized under false pretenses? Not to mention falsies pretences.
More importantly, who exactly will be committing the crime here? The amendment specifically outlaws the marriage between any two people who are not a man and woman. But since marriage is a legal contract doesn’t that imply that it is the person who presides over the ceremony who will be the one subject to committing a crime? Nowhere in the amendment does it state that two people can’t take part in a non-legally binding ceremony declaring their love for each other. The amendment specifically states that MARRIAGE shall consist of the union between a man and a woman. We all like to think of marriage as this blessed union between two people who love each other, but marriage is really nothing more than a legality in America. It exists primarily to facilitate a whole host of other legal issues, from income tax to employee benefits to medical decisions.
That being the case, then, if someone presides over a marriage between two people who are not the same gender-whether knowingly or not-will he or she have committed a crime? If knowingly, the answer seems obvious: yes. If unknowingly, the answer still seems obvious. After all, as we have been told over and over again, ignorance of the law is no excuse. Perhaps there will be two laws to spring from this. Voluntary wrongful marriage and involuntary wrongful marriage.
Of course, there is a way to avoid this eventuality altogether. Actually there are two ways, but since our fearless leaders seemed determined to make the Gay Marriage Amendment a reality, we’re probably going to have face the fact that the second method will become a fact of life. Since anyone who performs a marriage ceremony may have to deal with the possibility of committing a crime without the assurance that they are, indeed, sanctioning the legal union between a man and a woman, obviously steps will have to be taken to ensure that the parties involved truly are of separate genders. (A separate amendment will probably have to be passed to legally define gender in America.)
Blood tests used to be mandatory in America for any couple looking to get married. Many states no longer require the test. Well, guess what? If the Gay Marriage Amendment is ratified and marrying two people of the same gender becomes a crime there seems to be only one way to ease the fears of those presiding over marriages that they won’t be subject to jail time. Couples getting married in America following ratification of the Gay Marriage Amendment will probably have to take a DNA test before anyone will marry them. Sorry, but just showing up with a driver license that has a little M or F as proof that you are male or female just isn’t going to do it. Not in the age of easily obtainable fake IDs. (Now some people, conspiracy wacko types mostly, might argue that the Gay Marriage Amendment is really just a sinister plot to gather a comprehensive, nation-wide database of every American’s DNA, but I simply refuse to believe that our government would ever engage in such data mining practices without letting us know beforehand that we have nothing to fear and that protecting our civil rights is the number one top priority.)
It may sound ridiculous to think that two people who are in love with each other and just want to get married would ever be forced to scientifically prove their gender, but if same-sex marriage becomes a crime, and since no couple can legally marry themselves, there has to be somebody somewhere who is actually breaking the law. The only people capable of breaking this law will be those whose signature legally binds the marriage contract between the happy couple, therefore they will be the only ones who could possibly face any punishment for breaking the law. And since nobody wants to place themselves in legal jeopardy if they don’t have to, you can certainly bet that the lobbyists who will be representing the legal concerns of anyone empowered to marry will be pushing for mandatory gender testing in order to protect their clients. Sound far-fetched?
I’m willing to bet that around 1917 or so most people thought the idea of being arrested for walking across a state line with a couple of bottles of beer in a bag sounded pretty far-fetched.