"[A] bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse."
In a recent interview with CNN, Alabama Chief Justice Roy Moore defended his refusal to comply with a United States Supreme Court decision on marriage equality. During the lengthy interview, Justice Moore cited several different Supreme Court decisions to justify his actions, including the infamous pro-slavery Dred Scott v. Sandford decision.
While Justice Moore's reference to Dred Scott was apparently meant to say that sometimes the Supreme Court gets it wrong, it's interesting that he referenced a case that justified the practice of slavery. Many of the anti-same-sex marriage arguments we hear today were the same ones used to argue against freeing the slaves. And, if Alabama's Chief Justice has an issue with gay marriage, he really needs to blame Thomas Jefferson – not Chief Justice John Roberts.
"It's never been tried before." "The Bible doesn't mention it." "Civilized people have never done things this way." "No society in the 6000 years of the history of civilization since Gilgamesh has suggested such a thing." "It'll create social chaos, ultimately destroying the nation." "It's just too radical an idea for people to accept."
Those were the arguments put forth in the 1760s and 1770s as the American colonies split – divisions that often tore apart families – on the issue of whether a free people could govern themselves in a democracy or should stay with England's king. They were trotted out in the 19th century over the issue of freeing America's slaves.
They appeared again in the 20th century over whether women should be allowed to vote and fully participate in society. And these voices were heard again early in my lifetime when the Supreme Court forced public schools to allow white and black children to attend class together.
Gay marriage is simply the logical and appropriate extension of the idea that in a constitutionally limited democratic republic a vital function of government is to protect the rights of minorities. It's called "civil rights."
Back in 1787 when the Constitution was being worked out, conservatives pointed out that what John Adams called "the rabble" couldn't be trusted to elect representatives or – even more dangerously – become elected officials.
As the father of modern conservative thought, Edmund Burke (1729-1797), famously noted: "The occupation of a hair-dresser, or of a tallowman [candle maker], cannot be a matter of honor to any person – to say nothing of a number of other more servile employments. Such description of men ought not to suffer oppression from the state, but the state suffers oppression if such as they, either individually or collectively, are permitted to rule."
American representative democracy was an experiment in 1776 that had never before been tried among "civilized" people. The world watched with curiosity and awe, and during the Civil War figured it was at an end.
Even by 1900 there were only a handful of democratic nations in the entire world, and if you define democracy to require the enfranchisement of all people, male and female, black and white, the first true democracy didn't appear until 1920 when we passed the 19th Amendment.
Since that time, liberal democracies have exploded across the world. As of 2015, there are 193 member nations of the UN. By 2003 (the last year I could find statistics for), 140 held multi-party elections and 81 were considered "fully democratic" by the UN's standards. Through democratically elected representatives, citizens themselves rule nearly all of North and South America, Europe, Australia and most Pacific Islands, South Africa, and many parts of Asia.
This is all startlingly new – an eye blink in the history of what we call civilization. Democracy and civil rights are not "traditional values." The Bible, the Koran, and the Vedas sanction slavery. Women have been the property of men for nearly all of our history. And the idea that one of the most important functions of government is to protect the rights of often-unpopular minorities so shocked Colonial conservatives that many took up arms against the revolutionaries, fled to Canada, or returned to England.
George Washington was speaking directly to the issue of civil rights when, in 1790, he said, "As Mankind becomes more liberal, they will be more apt to allow that all those who conduct themselves as worthy members of the community are equally entitled to the protections of civil government. I hope ever to see America among the foremost nations of justice and liberality."
The history of America and the history of modern democracies is one of expanding civil rights. First we freed white males from the kings and queens. Then we freed those of us whose skin varied in color. Then we freed women. While none of us are yet completely free, the ancient kings are returning in the guise of multinational corporations, and the battles for civil rights continue against conservative forces, it's essential that we recognized that "We, the People" means all of us.
It's no coincidence that back in 2004, when the Vermont and Massachusetts Supreme Courts looked at constitutions written in the 1700s, inspired by the writings of Jefferson, Madison, and Franklin, they discovered therein the rights of gays and lesbians to civil unions and marriage. And, as those same ideals that helped shape our federal Constitution and Bill of Rights, where the justices of the United States Supreme Court found the power to strike down the Defense of Marriage Act.
Gay marriage is a civil rights issue, plain and simple, and entirely in keeping with the egalitarian vision of this nation's Founders. It's time for us to honestly and frankly face and accept that fact, and act appropriately. And, that means it's time for Justice Roy Moore to accept that marriage equality is the law in the state of Alabama.
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