An Open Letter to Kim Davis

Dear Ms. Davis,

      I write to you as a fellow citizen concerned for the welfare of our shared Republic. Your recent protest suggests a conflict between two sacrosanct rights enshrined in the Constitution, the First Amendment's guarantee of the free exercise of religion, and the Fourteenth Amendment's guarantee of the equal protection of the laws. I hope I may persuade you that the Supreme Court's long overdue ruling recognizing rights of marriage equality for same-sex couples creates no such conflict in essential terms.
       The arguments against your protest are not narrowly legalistic or academic in nature, but may be grounded in the tenets of your own faith. You claim that awarding marriage licenses to same-sex couples would violate the creed of your Apostolic Church, but if that is so then it becomes logically difficult to fathom how your religious commitments would allow you to perform the duties of your office in any regard.
         Perhaps you would assert that the issuance of a marriage license to a same-sex couple implicates you in a violation of the sanctity of the marital bond itself. But would this not be true for any couple applying for a license that did not plan to have their union sanctified under the proper auspices of your church? How could you, in good conscience, issue a license to a Jewish couple planning to be married by a rabbi, or a pair of atheists planning to be married in a civil ceremony? Why do these unions constitute a lesser violation of the sacred institution?
          Similar arguments apply if you would assert that issuing a marriage license to a same-sex couple would implicate you in facilitating the "sin" of same-sex love. Why would this be more of a transgression than facilitating the "sin" of unsanctioned love between Jews or atheists, or the (by the dictates of your church) adulterous union of those who had previously been divorced?
           You might insist that the case of same-sex love is different, in that you can not avoid knowledge of a same-sex couple's "sin" where that of a Jewish or atheist heterosexual couple is not immediately apparent. But does this make logical or moral sense as a rule by which to live and work? Not if we consult the creed of your church, which allows that its members may serve in "non-combatant roles" in the U.S. military, surely knowledgeable of the fact that their work will facilitate the combatant function of others whose conscientious choices differ. If your church believed that its members could never knowingly facilitate the "sin" of others surely its doctrine about military service would be different. Moreover, if facilitating same-sex love is a graver offense than facilitating the taking of human life, one can only conclude that the doctrine of your church (or your understanding of it) is distressingly eccentric.
         You have overlooked the call of your church to "render unto Caesar what is Caesar's," and fundamentally misunderstood the role of your office as county clerk. The marriage licenses issued by your office are not the sacral instruments of a religious ritual, they are the legal documents of a civil institution. As a state employee your authority, purview, and responsibility do not extend to citizens' souls, but only to their rights of property and legal status. Same sex couples do not want or need you to approve of their love. But they do require and are entitled to the equal protection of the laws, and the dutiful exercise of your office in that interest does not impinge upon any religious commitments, either yours or theirs.

                                                                            Sincerely,


                                                                             Andrew Meyer

                                                                                                          

Han Chinese Marriage: A Lesson for Chief Justice John Roberts

In his dissent from the Supreme Court's ruling acknowledging rights of marriage equality throughout the Union, Chief Justice John Roberts protested that the decision was an overreach on the part of the Court. He complained that the ruling “orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?” As many have noted, this passage expresses an understanding of social history that is simplistic at best. Rosemary Joyce has explained the absurdity of invoking Aztec marriage as a foundational precedent (hat tip to my friend and colleague Susan Tratner).
        As a historian of China I was likewise shocked to see the Han (206 B.C.E.-220 C.E.) Chinese on Roberts's list. A document that I have frequently used in class to discuss gender history with my students well exemplifies the problem with Roberts's reasoning. It is a letter from a Han dynasty official, Feng Yan, to his brother-in-law, explaining why he is forced to seek a divorce from his wife. In its opening lines, Feng declared:

"According to the rules of society that have been set down by the sages, a gentleman should have a primary wife and a concubine as well (translated in Ebrey, Chinese Civilization: A Soucebook)."

Feng goes on to explain that since his wife (the addressee's sister) has sought to change the age-old definition of marriage by denying him a concubine, Feng has no choice but to jettison the mother of his four children in search of someone more reasonable.  It is interesting to note that this is precisely the same logic deployed by Chief Justice Roberts two millenia later.
       As has been frequently stated, what opponents of marriage equality fail to understand is the high degree to which the institution of marriage has changed and evolved over the course of human history. The reality of same-sex love was understood by the Han Chinese as it was by the ancient Greeks and other early peoples. The reason that an acknowledgment of same-sex love did not translate into an embrace of same-sex marriage is that, as Feng Yan's letter demonstrates, marriage was (in theory, at least) understood to be a hierarchical relationship between master (husband) and servant (wife). This marital hierarchy was assumed to grow spontaneously from the natural gender order written into the framework of the cosmos. Two persons of the same gender thus could not marry, as it would be impossible to determine who was superior and who subordinate.
        Marriage has evolved (much more recently than most people imagine) to become a relationship between equals, thus there is no justification to exclude same-gender couples from the marital bond. In this respect, Chief Justice Roberts is utterly wrong- in upholding marriage equality the court did not legislate from the bench, it merely enforced the natural imperative of the 14th amendment's guarantee to all citizens of "the equal protection of the law." Federal law grants 1,138 rights and benefits to married couples. Anyone arbitrarily disallowed from marrying the individual that they love thus can not possibly be said to enjoy "the equal protection of the law." This ruling is not a thunderbolt from the blue. It is a consummation that has been due since the passage of the 14th amendment in 1868.

Marriage Equality Victory