Everything that divides men is a sin against humanity
—Jose Marti
On June 26, 2015, in the case of Obergefell v. Hodges, the Supreme Court made same-sex marriage legal nationwide.
This, of course, brought great joy to the LGBT community. But it was also a celebratory moment for those non-gay progressives who viewed it as an extension of the civil rights of citizens who have, historically, been maligned, mistreated and, in some cases, murdered.
I thought back to a meeting I’d had with a young man who when exiting a gay bar in Greenwich Village was attacked by a group of hooligans.
They were wielding baseball bats and in the melee which followed, he lost an eye. I wondered how those cowardly homophobes were reacting to the Obergefell decision.
The vote in the Court was 5 to 4 with Justice Kennedy once again breaking the tie between the liberal and conservative factions.
This split accurately reflects public opinion which, according to a Pew Research Center poll, showed that 55 percent of the respondents were in favor of marriage equality.
While there was a feeling of vindication on June 26, the battle is far from over.
Many of my liberal friends do not realize that there is no comprehensive federal non-discrimination statute on the books.
What does this mean? Hypothetically, a gay couple can get married at 10 a.m. but can be fired from their jobs at noon, and be evicted from their home at 2 p.m.
Getting a non-discrimination law on the books is now a top priority for groups concerned with human rights.
Just when you thought the story was about to come to an end, Kim Davis, the Rowan County, Ky., clerk in charge of issuing marriage licenses refused to do the job for which she was elected.
As an Apostolic Christian, she maintained she was acting under God’s authority. Her act of defiance was a clear violation of the Supreme Court decision and a federal judge found her in contempt of court and threw her in jail.
What doesn’t get much coverage is Davis’ own marital history. She has had three divorces, four marriages, and gave birth to twins five months after her first divorce.
These children were fathered by her third husband and adopted by her second. If all this is too complicated, it doesn’t matter since under the law Davis’ personal life is not relevant.
She maintains that she was “saved” and truly believes she is acting on religious principles. And she is not alone.
To their everlasting shame, six candidates for the Republican nomination for president have expressed sympathy for Ms. Davis.
They are Mike Huckabee, Ted Cruz, Bobby Jindal, Scott Walker, Rand Paul and Rick Santorum. Of these, Huckabee and Cruz visited Davis on the day she was released from jail.
Huckabee, in a gesture which can only be described as grandstanding, informed the assembled throng that he would go to jail for Ms. Davis even if it meant years behind bars.
Someone needs to inform the former governor that our system of jurisprudence does not allow one person to serve time for a crime committed by another.
Opposition to same-sex marriage is not only voiced by politicians but by various churches as well.
These include the Catholic church, the Mormon church, some evangelical Protestant denominations and Orthodox Jews.
Obergefell v. Hodges leaves many questions unanswered. Here are a few.
A wedding planner, a florist and a photographer all refuse to have anything to do with a gay wedding. (We are fairly certain that the Constitution protects clergy from being forced to officiate at marriages for same-sex couples.)
But what happens when a religiously affiliated institution like a university which offers married, heterosexual couples housing, refuses it to gay and lesbian couples?
Does a Catholic judge who doesn’t believe in divorce have a right to deny one?
Does a Muslim working in the Motor Vehicles Bureau have the right to deny a woman a driver’s license?
What about religions which sanction child marriages? And here’s an international dilemma.
In 2010, the French government passed a law making it illegal for anyone to cover their face in a public place. While this prohibition mostly affected Muslim women, the government argued that the law was designed to encourage citizens to “live together.”
The case went before the European Court of Human Rights which decided in favor of the French government.
What was designed to bring resolution to a thorny issue, has opened a Pandora’s box of legal questions.
At the risk of oversimplification, let me suggest one criterion which may solve some of these dilemmas.
If you are acting in the public domain e.g. a photographer who does weddings, you cannot pick and choose which ones you will “shoot.” In other words, if you offer your services to the public at large, you should not be able to discriminate. This harkens back to the sit-in days when restaurant owners refused service to blacks on grounds that their businesses were privately owned. I believe we set a dangerous precedent when we allow individuals to impose personal standards in the name of religious freedom.
The 1st Amendment to our Constitution calls for a separation of church and state.
In Everson v. Board of Education (1947) Chief Justice Hugo Black wrote: the “establishment of religion clause….means neither a state nor the federal government …can pass laws which aid one religion, aid all religions, or prefer one religion over another.” It then follows, If a gay Christian couple which came before Kim Davis asking for a wedding license can be turned down because of her “born again” beliefs, isn’t that favoring her religion over theirs?
This is a slippery slope which none of us should look forward to scaling.
Our democracy is a balancing act. We frequently encounter adversarial groups both claiming that God is on their side.
Sadly, the rights and privileges of one group may have to be sacrificed in order for justice to be served. We eliminated slavery over the vehement opposition of the Confederacy. We extended the franchise to women much to the chagrin of the earliest “male chauvinist pigs.”
The Supreme Court forced integration in the public schools much to the consternation of diehard segregationists.
Yet, over time, we adjust. The strange case of Kim Davis will find itself on the scrap heap of history and our children will look back upon this era as we do the Dark Ages.
Dr. Hal Sobel
Great Neck
