Thursday, September 3, 2015

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.


                                                                             Andrew Meyer


Monday, June 29, 2015

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.

Monday, April 1, 2013

Answering Scalia's Question

During oral arguments over the repeal of Proposition 8, Justice Antonin Scalia asked the following question of Ted Olson, one of the attorneys arguing for the repeal: "I’m curious, when—when did—when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?" Mr. Olson's answer was rather labored and tentative. To paraphrase his reply, he asserted that this change had happened at some indeterminable point when society realized that sexual orientation is not a matter of choice. Not being a lawyer, I am not aware of the possible legal reasons behind Mr. Olson's evasiveness. Still, I can not help expressing dissatisfaction with this answer.

From my perspective, the answer to Justice Scalia's question is quite clear: denial of marriage equality became unconstitutional with the adoption of the Fourteenth Amendment and its guarantee to all citizens of "the equal protection of the laws." There is no network of legal obligations in which a citizen is enmeshed so binding or significant as the family, and there is no familial relationship more intimate than with one's spouse. This latter fact is a function of U.S. law, and may be deemed a hallmark and prime achievement of our American Revolution. In the Old World the obligations borne to one's natal family trumped that to one's spouse (blood was, as they said, thicker than water). In America, one's spouse became one's next-of-kin, because we recognized that weight should be given to the one family relationship that was entered into freely and of one's own volition. In a democracy, choice trumps birth.

Anyone excluded from the marital compact is deprived of this ability- the power to choose one's closest relative. Given that under federal law alone, marital status conveys 1,138 rights and benefits, anyone barred from the institution of marriage can not possibly be said to enjoy "the equal protection of the law." Unless one is willing to completely discount the role of love in family life, there is no way to square the denial of marriage equality with the imperative of the equal protection clause.

Putting a date on this change is less paradoxical that it may sound. We should not confuse the time when a law became unconstitutional with the point at which it "became" wrong. It was always wrong to deny human beings the equal protection of the law on the basis of race. The fact that it only became unconstitutional and illegal in 1868 did not make it any less wrong in 1791. On the same principle, the exclusion of same-sex couples from marriage always denied them the equal protection of the law. The fact that we are only realizing it now did not make it any less unconstitutional in 1868.  The constitution is not a guide to right or wrong, it is a set of rules by which the organs of our government are bound. As our understanding advances, the implications of those rules change. Now that we know that marriage discrimination deprives millions of our citizens the equal protection of the law, we are bound by our own constitution to the establishment of marriage equality. 

Tuesday, June 19, 2012

Connecticut (II, redux) Senator Richard Blumenthal

Today I correspond with Senator Richard Blumenthal, Democrat, junior senator of Connecticut:

To the Honorable Senator Richard Blumenthal,

       Since your recent election to the Senate, you have been an outspoken opponent of marital discrimination, co-sponsoring the "Respect for Marriage Act" that would repeal DOMA and secure the rights of same-sex couples at the federal level. Though this is a courageous and necessary step, full civil rights will not be extended to eveyone until rights of marriage equality are secured for all Americans living in all states of the union. To that end, I would like to see the federal constitution amended to read: "The right to marry shall not be abridged or denied by the United States or any state on account of sex or sexual orientation." If you would propose such an amendment to Congress, it would broadcast to the world the sincerity and commitment of those of us on the right side of this issue. Proponents of atrocities like DOMA and Proposition 8 wrap themselves in the cloak of tradition and piety. The time is right to let the world know that those of us who believe in marriage equality do so on the basis of principles and values that we hold no less sacred, and that we would see these values enshrined in our nation's basic law.
       Please give some thought to this idea, and consider acting on it in due course. In any case, I hope this communication finds you well, and thank you for your attention on this matter.


                Andrew Meyer

Saturday, June 16, 2012

Arizon (II, redux) Senator John Boozman

After a long hiatus, I correspond with Senator John Boozman, who defeated Blanche Lincoln to become Arkansas' junior Senator in 2010.

To the Honorable Senator John Boozman,

       I write to you in protest of your opposition to marriage equality for all Americans. In response to President Obama's recent support of marriage equality, you objected, declaring that discrimination in favor of heterosexual couples is "the way it has been for centuries and I don’t think we need to change that.” You also provided the excuse of your status as a representative, asserting that "the vast majority of [Arkansas] feels like [marriage] should be between a man and a woman."

      Both of these arguments are specious, and beneath the dignity of your office. Centuries ago marriage was a vastly different institution than it is today. Wives were considered the chattel of their husbands, couples of different races could not marry, individuals could be forced into marriage against their will. All of these practices, despite having been supported by large majorities, were recognized as being incommensurate with basic civil rights and reformed, just as discrimination against same-sex couples will end in our lifetime.

      I urge you to consider your legacy and to cross over to the right side of history. Future generations will remember those who stood for discrimination as the enemies of progress. Rather than voting to amend the U.S. constitution to strip citizens of their rights, as you have done, you should support the amendment of the constitution to end discrimination and to secure the 1,138 rights and benefits of marriage under federal law for all citizens: "The right to marry shall not be abridged or denied by the United States or any state on account of sex or sexual orientation." Enshrining this principle in our basic law will advance the fulfillment of the founding principle of our Republic.

      Thank you for your attention on this matter. I hope this communication finds you well.


          Andrew Meyer

Thursday, May 19, 2011

Cut the Glitter

Though it has been a shamefully long time since I posted on this blog, a recent event compels me to speak up. On Tuesday, May 17, activist Nick Espinosa dumped a box of glitter on GOP presidential candidate Newt Gingrich, in protest of Gingrich's opposition to marriage equality. Though I would agree that, "Anyone telling people who [sic] they can and cannot love is offensive, especially coming from a serial adulterer like Newt," I cannot approve of Espinosa's actions. Condemning and even embarrassing those who would discriminate against their fellow Americans is legitimate, but no political protest is acceptable that actually trespasses upon the physical person of the target.

This principle has become especially urgent in the wake of the shooting of Representative Gabby Giffords, and does not apply only in the movement for marriage equality but for all Americans of any political persuasion. Though glitter may seem harmless and "fun," Espinosa's use of it exposed vulnerabilities in Gingrich's security that might be exploited by those who mean him actual harm. Security personnel are acutely aware of this fact, and will adjust the public profile of Gingrich and other similar public figures to close off these vulnerabilities in future. Even if incidents like Espinosa's don't open the door to further violence, the sum effect of such actions will be to radically curtail the accessibility of all figures across the entire political spectrum, bleeding our civic life and politics of much of its dynamism and openness.

As a society we must adopt a "zero tolerance" policy to any and all physical assaults on public officials and politicians. Either the persons of our officials and politicians are sacrosanct, or we condemn ourselves to living in a police state in which the "political class" is forever insulated from the public it serves. To pranksters like Espinosa, I say: cut the crap. Speaking truth to power with humor is all fine and good, but physical comedy is not a funny matter when it comes to politics.