Frank Bernheisel: The View From Here
Frank Bernheisel
Frank Bernheisel
Posted 03.26.13
Just Outside Washington


Gay Marriage: The game is on

In the US, nine states have laws the sanction gay marriage and thirty states prohibit gay marriage in their constitutions. Colorado, one of the latter, just passed a law to establish civil unions for gay folks.

The Republicans seem to be coming out of the closet on this issue.

First came Dick Chaney, and now Rob Portman. Of course, their conversions came after finding that one of their children was gay.

Dozens of top party operatives and former politicians -- including six former aides to Mitt Romney and seven current or former members of Congress -- have signed an amicus brief supporting the legal challenge to California's Proposition 8 in advance of oral arguments to the Supreme Court on the constitutionality of the gay-marriage ban.

It must have been the writing on the rest room wall.

Where did we -- as in "We, the people" -- go wrong?

We never got separation of church and state, right. The First Amendment says: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." That was not clear to some and so Jefferson clarified it, when he described the First Amendment as erecting a "wall of separation between church and state." But we did not follow through and some of us have insisted in dragging religion into public institutions ever since.

We need public and legal expressions of commitment and continuity between social partners. Marriage is that expression. However, we never established what marriage was -- from the federal legal perspective. We acquiesced to custom and whatever the states wanted to do.

Sometimes the states lead, as in the case of the Virginia Statute for Religious Freedom. And sometimes the states are dragged kicking and screaming into the national consensus; the Supreme Court decision supporting the Loving's marriage, which violated the state's anti-miscegenation statute, the Racial Integrity Act of 1924.

The game is on with the Supremes once more. Will they kill the Defense of Marriage Act? Will they throw out Prop 8? Will Justice Kennedy once more perform the legal slam dunk? Will Justice Scalia once more do a JaVale McGee with his ridiculous behind-the-back-dribble that turns into an alley-oop and flies into the stands.

Stay tuned...