Morning Joe Scarborough gets it wrong on gay marriage

by Rick Ungar

I like Joe Scarborough.

In fact, I watch him most every morning. Not because I agree with him (I often don’t) but because he tends to approach issues openly, has a sharp mind and does a pretty good job of calling out anyone – regardless or party or ideology – if he thinks they have it coming.

But on yesterday morning’s show, Morning Joe blew it.

Disagreeing with this week’s Federal Court decision that found California’s Proposition 8, the measure outlawing same sex marriage, to be unconstitutional, Joe focused on the fact that the court was making law that flies in the face of what the majority –possibly the overwhelming majority – of Americans actually want.

Scarborough is likely right about what Americans believe on this issue. As we know, every single state that has put the issue to a vote has found that the majority of their voters very much do not want same sex marriage.

But Joe should know that equal protection under the law is not subject to the vagaries of popular opinion at any given point in time. Were this to be the case, does anyone believe that we would have ever accomplished the advances made in civil rights, extending equal protection and due process to all races in America? If left to the states to vote on the rights of African Americans, what would Alabama, Mississippi or any number of states look like today?

While many have shown up on the chat shows to express their delight or disgust with Judge Walker’s ruling on Prop. 8, nobody seems to want to address this issue for what it is –religious and cultural comfort versus civil rights under the law.

From the religious point of view, many Americans believe that God does not sanction the notion of same sex marriage. These folks believe that by any religious standard, a man is intended to marry a woman – a woman marries a man – and there is nothing in between that could possibly be acceptable.

They may be right.

While I may not see it this way, I can appreciate how people of certain religious views could view same sex marriage as a serious affront to God’s will and intent for those of us on the planet.

Indeed, most analysts believe that Prop. 8 would have gone down to defeat in California had the state’s African American community approached the question as a civil rights issue. They did not. They approached it as a religious issue, voted to ban same sex marriage and proved to be the crucial factor in the passage of Prop. 8.

But civil rights do not exist at the whim of the populace or any particular segment of the same. Indeed, that is precisely what the 14th Amendment to the U.S. Constitution is, in part, all about.

Watching Joe Scarborough these past few mornings, one could sense that he is a bit uncomfortable with the approach he is taking on this issue. As Joe himself points out, he is, typically, of a more libertarian persuasion – meaning that he believes people should be able to do what they want if they aren’t hurting anyone. This might explain the feeling I get that he is a bit dubious about the position he is taking on same sex marriage.

He has good reason to be uncomfortable. Despite defending the position that gay marriage should be prohibited because more people want it banned than those who don’t, Joe seems to sense that something is wrong with his argument. In my opinion, what is wrong is that Scarborough is allowing his religious belief – to which he is wholly and completely entitled – to color his logical understanding of our law and, therefore, knows he is wrong on this even if he wishes it were otherwise.

In America, each of us is entitled to practice our own religion so long as our practice doesn’t harm others. While one devout Christian may view same sex marriage as a serious violation of the religion, I know many in the Gay and Lesbian communities who believe that they too are sincere, practicing Christians.

Yes, I know that the first group of Christians would say that the second group can hardly call themselves the same if they believe in gay marriage, but isn’t that precisely why this country was set up as a secular system based on a constitution? People will always disagree on religion. We have thousands of years of history to show us what happens when people clash on the basis of religion.

People die…by the millions.

If those who choose to participate in gay marriage are, indeed, breaking a fundamental rule of God, there will be a time when they will answer for that – or not. But since well meaning people of religion will disagree on this subject, are we not better off leaving it to the person making the choice and their God to work this out?

Gay marriage cannot be a religious question under our system of government. And that means it must, in fact, be treated as a civil rights question.

I know Joe Scarborough would agree that when it comes to our civil rights, the populace point of view should never to be the determining factor – at least not until the populace gets together and approves a constitutional amendment saying otherwise.

Until and unless such a constitutional amendment banning same sex marriage is achieved in accordance with the amendment procedures set out in the U.S. Constitution, we have no choice but to apply the law to the question.

So, where is the state’s interest in determining just whom can marry whom? Can anyone tell me who is being harmed by permitting people to make their own decision regarding the choice of their partner?

I’ve heard the argument that permitting gay marriage will cause children to be taught the practice in schools thereby encouraging our youth to choose to pair up in a same sex marriage. As I have yet to see any empirical evidence that that children would somehow be inspired towards same sex marriage should they hear about the practice in school (as if they are somehow unaware that gay people exist) can reasonable people not dispense with this as a completely foolish argument?

I’ve heard the argument that healthy children need both a father and a mother. While, personally, I think this is a great thing, if this is to be the basis of barring gay marriage, why have we permitted divorce when there are children in existence from a heterosexual marriage? What about children born out of wedlock? As none of this is illegal, the inconsistency would appear obvious.

What’s more, who is to say that two parents of the same sex cannot divide up the traditional roles of mother and father and make it available to their children?

At the end of the day this is about the discomfort people have with gay marriage based either on religion or cultural discomfort- not unlike the cultural discomfort that many once had (and, hopefully, fewer now have) towards African Americans in our society.

Cultural discomfort is not a basis to deny equal protection under the law in America just as religion is not a basis to deny civil rights to all Americans.

So, Joe – can I propose that you use that bright legal mind of yours to break this issue down as a matter of law in America? Set aside your discomfort with gay marriage if you are, in fact, uncomfortable with the same, and acknowledge that this is not how the United States of America is built to work. Set aside whatever religious objection you may have because you also know that this is not a legitimate basis to deny the rights that you have to your fellow Americans.

And please, Joe, acknowledge that, upon reflection, you realize that suggesting that law and equal protection be set to the side because a majority of people don’t like the result is not the way we do things in this country and hopefully never will be.

You know all too well where this kind of thinking leads for any minority and you know that this is not what we are all about. I know that this is not what you are about.

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55 thoughts on “Morning Joe Scarborough gets it wrong on gay marriage

  1. Great post, but I do have a mild quibble. I don’t believe we can fairly lay the victory of Prop. 8 at the feet of the socially conservative african american community. I remember Coates exploring the polling on this in detail in the wake of the Prop. 8 victory and debunking it.

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  2. For those who wish to claim the legitimacy of majority sanction, the fact that the Constitution is both the fundamental and supreme law of the Republic, and at the same time largely an articulation of those matters which are beyond the reach of the majority (either in substance or in structure) is a damnably inconvenient truth.

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  3. “At the end of the day this is about the discomfort people have with gay marriage based either on religion or cultural discomfort- not unlike the cultural discomfort that many once had (and, hopefully, fewer now have) towards African Americans in our society.”
    Oh pleazzz, this statement rather typifies the sometimes dreadful thinking going on around here where any knowledge of the ground of man’s existence is culturally eradicated and you fellows run about telling us how smart you are, when in fact you merely exist in a Hegelian alienation to existence.
    I’m beginning to think that modernity has embraced a subtle gnostic system, one difficult to ascertain in all the cultural bullshit, where the purpose is the separation of man from reality by “isolating” his existential consciousness, by attempting to destroy the desire to move toward God.

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  4. > If those who choose to participate in gay marriage are,
    > indeed, breaking a fundamental rule of God, there will
    > be a time when they will answer for that – or not.

    I think this is where the anti-SSM (and for that matter, a lot of anti-whathaveyou issues people) are honestly conflicted over an actual feeling of compassion.

    If you honestly believe your religion is the path to salvation, and you honestly believe that someone is behaving in a manner that is profane, you may very well feel compelled by your own compassion for that person to at least try to save his/her soul.

    Some people are freaked out by gay people and they hide their fear under self-righteous indignation, which they screen from view under a parlor mask of compassion. But, some people actually *don’t* hate gay people. They just want to save them from themselves.

    Indeed, most Christian denominations have a moral imperative to spreading the word embedded deeply in the dogma.

    > But since well meaning people of religion will disagree
    > on this subject, are we not better off leaving it to the
    > person making the choice and their God to work this out?

    This is part of the rub. But you need to take it one step farther, Rick.

    If someone offends God, ultimately it’s up to them and God to work it out. If you feel compelled (either by inclination or dogma) to help those people avoid this confrontation (Jesus calls us all to be shepherds, remember!), that in and of itself might be okay.

    But it still doesn’t follow that your individual duty to be a shepherd ought to be encoded into the law. Aside from the anti-establishment clause in our particular legal code, this can generalize out to other systems of government as well.

    Nobody says you need to support gay marriage. In fact, within certain limits, you’re within your rights to preach all you want to try and bring the broken gay people back into your fold if you wish. You’re not allowed to outsource your shepherd duties to the guvmint, though. That’s just laziness. Jesus calls *you* to be a shepherd. You can’t outsource that duty to somebody else.

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    • @Pat Cahalan, We agree. I completely understand someone who feels the obligation to put someone on a different path if they feel they are doing it for that person’s benefit, be it spiritual or otherwise. However, as we agree, there is a difference between legislating away someone’s civil rights and taking an active interest in trying to place them on the right path. I don’t believe that the majority of people who feel so fervently about preventing SSM are acting out of a Christian desire to save the soul of gay members of society. They are acting out a sense of self-preservation because they think it is what is best for themselves.

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  5. While I may disagree with the ruling, I don’t have a problem with a referendum being overturned. Here’s why:

    Congress makes laws from time to time which get overturned upon judicial review. The first example that comes to mind is the line-item veto which didn’t pass the court test under Clinton even though I would guess (without seeing specific polling) that a majority of Americans supported it. The same holds true for Presidential actions like Truman and the steel industry. So… while referendum votes are great from time to time as a means of more direct democracy, the same checks and balances apply. Laws enacted by referendum votes do not carry any special protections that make them immune from judicial review and do not require them to be constitutional. So this decision is legit in my books as a matter of process and I see no problem with it.

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        • @Mike at The Big Stick, It will go to the 9th circuit court of appeals. A decent chance that the 9th circuit will uphold the lower court ruling given that it is fairly progressive. If they do not, it is going up to SCOTUS either way. It will be all about Justice Kennedy’s vote as he will break the tie. Judge Walker, the federal district court judge who ruled the other day was very clever about this. He cited Kennedy’s opinions a number of times in his own opinion as Kennedy has actually been pretty sympathetic in past rulings on this issue. Where it could get tricky is if the 9th circuit reverses the lower court. This could make it easy for SCOTUS to avoid the issue by refusing to hear the matter when appealed from the appellate court – but unlikely. Believe it or not, there is a decent chance – given Kennedy’s previous rulings – that the lower court ruling could be sustained by SCOTUS.

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          • @Rick Ungar, Now here’s the million dollar question: Even with Prop 8 overturned, does that mean an automatic right for gays to marry? Specifically, I agree that a ban is unconstitutional because it essentially puts discrimination into writing by recognizing gays as a group of people and then barring them from a state-created institution. Would I would suggest is that even with it gone, the right to SSM doesn’t automatically appear until gays are ruled a protected class.

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            • @Mike at The Big Stick, Mike, it means that Arnold won’t be able to hide behind the prop 8 question when his legislature sends him a same sex marriage bill again. After all, it’s important not to forget that Prop 8 was a desperate appeal to direct democracy by SSM opponents after they realized that they had lost in the legislatures that they had been so busy claiming to be sacrosanct only months earlier.

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            • @Mike at The Big Stick, A good question. I’m not completely sure, however I don’t think they would have to be designated a protected class. I think if it is upheld that banning SSM is unconstitutional, it means that anyone – not specifically a protected class – can marry whomever they wish as a basic human right under the constitution. Thus, I would anticipate that were the finding to be upheld, that would be that.

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            • @Mike at The Big Stick, well you covered it already Mike. Anyone can marry. Anyone, not anyones. As Jason indicated in his previous post the rationale under equal protection doesn’t work for someone who seeks to marry two people.

              To your former question I honestly am unsure. In CA’s case there is a bill to grant SSM that was killed solely based on the fig leaf of prop 8. But in the absence of that I would think that trying to make the government to take the positive action of issuing marriage certs would require a separate action (note, I’m no lawyer). I suppose that you could bring a lawsuit claiming that the government is issuing heterosexual marriage certs but not gay ones. Then the Gov could resolve it, assuming they lost the lawsuit, by either issuing gay marriage licenses or by ceasing to issue straight ones.

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            • @Mike at The Big Stick, the court has stayed its order that Prop 8 is unenfroceable and therefore not part of the CA Constitution. If that stay is lifted, previously decided California law will instantly allow state official to approve same-sex marriage licenses. That was the state of affairs when Prop 8 was approved by voters, so that will be the state of affairs when Prop 8 is nullified.

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            • @Mike at The Big Stick, it says nothing directly about such states. Kentucky, for example, is not directly implicated by Perry v. Schwarzenegger. However, a pro-SSM litigant in Kentucky would be able to cite Perry as a Federal court holding that a prohibition against SSM violates the Due Process and Equal Protections Clauses of the Fourteenth Amendment to the U.S. Constitution, and therefore a Kentucky state law, or a provision of the Kentucky constitution, violates the U.S. Constitution and is therefore void. The court in Kentucky could then do one of two things — either agree with the reasoning in Perry and void the Kentucky law, or disagree with the reasoning in Perry and say that Perry isn’t binding law in Kentucky and offer its justification for why a prohibition on SSM is consistent with the Federal due process and equal protections guarantees. If the Kentucky court picks option #2, that’s setting up and almost guaranteed review by the U.S. Supreme Court, whose decision would be binding on both Kentucky and California.

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  6. From the religious point of view, many Americans believe that God does not sanction the notion of same sex marriage. These folks believe that by any religious standard, a man is intended to marry a woman – a woman marries a man – and there is nothing in between that could possibly be acceptable.

    They may be right.

    While I may not see it this way, I can appreciate how people of certain religious views could view same sex marriage as a serious affront to God’s will and intent for those of us on the planet…

    …But civil rights do not exist at the whim of the populace or any particular segment of the same. Indeed, that is precisely what the 14th Amendment to the U.S. Constitution is, in part, all about.

    This is what the issue boils down to, for me. I firmly believe that homosexual relationships are immoral and contrary to the Bible; I just don’t think that my belief gives me a right to forbid it, and I don’t think that allowing it will harm straight marriages.

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        • @Bob, Missing the point. She is entitled to her opinion and her belief. And, while I’m certainly no bible scholar, I suspect a case could be made that the bible is not tolerant of homosexuality. Of course, the bible is not tolerant of a great many things that we now accept in society…and we are no longer tolerant of many things that were permitted in the bible, such as polygamy.
          Maybe some ‘tolerant understanding’ would be appropriate on your part? Unless you can show us that the bible is comfortable with homosexuality, maybe – just maybe – Kathleen has it right, from a religious point of view. What is important is not what we believe because nobody can say who is right and who is wrong on so many of these questions. What is important is that people don’t force those beliefs on others. So, yes, I continue to find her approach to be enlightened while maybe your own approach is subject to some question.

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  7. Regarding the poligamy question – this is where it gets interesting. If it is unconstitutional to ban SSM, it would not take legislative action to legalize it because marriage is already recognized as a legal act in every state. Thus, anyone would be able to get married regardless of sex (assuming it is ultimately unconstitutional to single out gay people and say they can’t marriage.) So, if anyone can marry, why is that limited to two people as opposed to more?
    The only answer is that the court has previously held that the state has a legitimate interest in banning polygamous marriage.
    This is a question many anti-SSM people are raising in regard to this case. If gay people can marry, why not polygamy?
    I’ll do some research on this and see what I can come up with.

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  8. “the court has stayed its order that Prop 8 is unenfroceable and therefore not part of the CA Constitution. If that stay is lifted, previously decided California law will instantly allow state official to approve same-sex marriage licenses. That was the state of affairs when Prop 8 was approved by voters, so that will be the state of affairs when Prop 8 is nullified.”

    Not entirely accurate. The stay was only in place until last Friday. Both sides have given the courts briefs on whether the stay should continue or be lifted. The court should issue a ruling today or tomorrow. Both the attny general and the governor of CA are supportive of lifting the stay.

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  9. I would say leaving this up to the States is fine, except that they must except a marriage contracted in another State. There’s that full faith and credit clause and the right to travel. If other States recognize your drivers license and any number of other contracts, to then turn around and ignore your marriage contract is reprehensible.

    From a practical standpoint, say I’m in a same sex marriage in Massachusetts. My employer decides to transfer me to Texas, it’s a better job, more money, and the place is closing in MA. If I go, I’m suddenly divorced. How is that in anyone’s interest? Can any Straight people imagine being divorced upon crossing a State line? Okay, maybe not divorced. But if Texas won’t recognize it, it’s as good as being divorced.

    And there are many other logistical questions. Say I decide to go to Texas because my job is closing in MA and rather than be unemployed, I go. But my husband can’t just up and go, at least not yet. So he stays behind in MA. So now, am I still married in Texas or not? Is he still married in MA or not?

    One more scenario. What if we both move to Texas. Texas does not recognize the marriage. We decide to divorce, but they won’t grant us one, because they didn’t recognize it in the first place. But I”m bisexual, and now I meet a woman I want to marry. Can I marry her? Or is Texas actually recognizing my marriage so I can’t?

    So many questions. Would be SO much easier to just have it recognized everywhere.

    Okay, as an aside. I don’t think the term “Gay Marriage” is accurate. It should be said as “Same Sex Marriage”. If a gay man married a lesbian, it’s still a gay marriage, although not a same sex one.

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