Andrew C. Thomas
There’s an old piece of paper that’s getting a lot of attention recently, and it’s not the Declaration of Independence.
Not to say that a loud and splendid display of fireworks doesn’t get attention, as most of us saw this past weekend in the Declaration’s honor, but the explosions this document is responsible for in Washington are being felt all over the country.
In its Romantic spirit, this more perfect union of the people was based on the glorification of the individual. Many working versions of democracy, while carrying this noble goal, have ignored some individuals due to terribly tainted selection processes. The Constitution, however, has been a beacon of hope and a shield of protection to “the minority.”
If we lived under true majority rule, as a great number of Americans believe we do, we would be liable to pass insane laws during times of mass hysteria. And other democracies, let alone this one, have enacted terribly bigoted legislation against the rights of a smaller group. It was all too easy to pass the Nuremberg Laws and apartheid under democratic rule.
But despite its drafters’ intentions, the document wasn’t perfect. Rightly, idealistic steps have been taken over the years to patch gaping holes so that all Americans -- citizens and residents -- could enjoy freedoms previously denied. One of those holes -- in chronological order, the fourteenth -- recently got a lot of attention.
The Constitution was under full scrutiny when the Supreme Court made two decisive rulings of different natures. On one hand, affirmative action was a program found not to violate that amendment’s Equal Protection Clause, since racial diversity in education was found to be a compelling state interest; on the other, anti-sodomy laws were found to directly violate that same clause for its restriction of the privacy rights of Americans.
Some people - well, not just any people, opponents of the latter ruling - cried that the judgment would lead dangerously to gay marriage, despite its “overwhelming” unpopularity. But we do not live in Nazi Germany, and the constitution rules supreme. Last time I checked, American citizens were required by law to uphold the constitution’s ideals through the government that represents them.
But the system is not free from abuse. Senate Majority leader Bill Frist (who, as Maureen Dowd reminded us recently, is a kitten killer) wholeheartedly recommends confronting this gay marriage business through a constitutional amendment that unequivocally enforces an institution of marriage that is exclusive to heterosexual couples.
Leaving alone that Frist’s arguments are entirely based on “sanctity,” and therefore incompatible with the separation of church and state as dictated in -- guess what -- the Constitution, this is still a religious problem at its heart. Will churches be required to marry gay couples? Of course not.
Do we, as free-thinkers, have to respect the constitution? We certainly have to respect it enough not to abuse it as a means to carry out a moral vendetta.
Canadians are going through the same pains. Last month’s gay marriage decision hinged upon the Charter of Rights and Freedoms, a key component of the adolescent constitution (as of now, it’s about as old as I am).
The cross-border difference, however, is mind-boggling, since opponents of gay marriage, notably Alberta premier Ralph Klein, have vowed to maintain marriage as a heterosexual union through the constitution’s limits.
Notably, the fact that parts of the constitution are non-binding.
The “notwithstanding clause,” a compromise during its inception forced by separatist Quebec, allows for legislative bodies to selectively ignore inconvenient parts of the constitution, the idea being to balance moral imperative with legal stability. The hope had been expressed that the voting public would be responsible enough to respect the Charter’s spirit.
But here, south of that particular border, has that same spirit been violated by Bill Frist? It sure seems that way, when the rights of the minority are being wantonly disregarded.
I see light at the end of this tunnel. After all, people from Frist’s neighborhood used to complain loudly and officially about the activities of another minority, and with the help of legislators it was the protection of the constitution that saw them through.
What was the unholy behavior of that day?