Living amongst the evangelical horde, I tend to have a knee-jerk reaction to the smallest threat of religious intolerance. I am especially sensitive to slights by the State. I have a bone to pick with it on this score, as I feel that I also have been abused by the current marriage laws. In Oklahoma, the law gives you the option of having a religious ceremony or a civil one to solemnize your marriage contract. You may take your oath before a minister or a judge; it’s your choice. In practice, you can’t find a judge willing to perform such a ceremony, even for a fee. They will only extend this service to those with whom they have personal connections, and the law does not require a judge to oblige a request to officiate. Accordingly, in Oklahoma, you don’t really have a choice — you must have a religious ceremony (unless you got a judge in the family). Every year, many couples without religious affiliations make the pretense in order to marry the person of their choice. I was one of such persons so compelled…and I resented it. Given the choice, I would’ve much rather had a justice of the peace or some other minor magistrate officiate the ceremony. Given the choice, I’d have like to have avoided the religious connotations of being married altogether. Had I been offered the opportunity to form a civil union, I would have preferred that option, and I feel that I was coerced to marry.
I am entirely of the opinion that the State should get out of the marriage business completely anyway. The law should permit citizens to register either their civil union or marriage contract. Those who wish to marry could do so in a ceremony authorized by their churches. They could then file the paperwork to have that contract registered by the State. The registration, then, would be what the law recognized and it would merely establish a spousal contract. Those who wished to form a civil union on the other hand should be offered the opportunity to have their ceremony officiated by a civil official — an office could even be established so that there would be someone charged to fulfill this duty. The civil union contract could then be registered with the State, like the marriage ones. In this way, true choice could be ensured by our government.
I am also of the opinion that the civil union — since it is not justified by any religious canon — should be available to anyone, regardless of sexual orientation. Shoot, if your church will authorize it, the State should recognize same-sex marriages too. It has no place to promote any religious sentiment on the topic, and there is no legitimate governmental purpose that could justify denying a spousal contract to willing adults. I really don’t know why the State has a stake here. I mean, it’s going well beyond God’s interference on the subject. In His infinite wisdom, when he set the law in stone via the Ten Commandments, he did not prohibit same-sex marriage. Further, he didn’t build in any kind of natural inclination or mechanism (programmed into our DNA or whatever) to prevent people from falling in love with others of the same sex as them. Thus, through the law and through genetics, God did not bar same-sex marriage. Clearly, He doesn’t care if you love a man or a woman. He gives us free will on that.
I don’t know why the State thinks it’s wiser than the Almighty on this one. The reasoning behind the government’s policy doesn’t even seem smart to me, and to add insult to injury, it unnecessarily infringes on the rights of the citizenry. The Sub-mighty is so much more tyrannical than the Creator. Maybe that’s because God knows He’s got the power. The State has to huff and puff — as if it could do anything to keep you from loving someone. (God, on the other hand, could just turn your heart.) I guess it’s human nature to want to judge your neighbors, but if I have to pick sides on this one, I’d just as soon toss my hat in with God. Mark me down with the pro-choice crowd then, folks. At least then I’d get to decide what I want to do on the next go ’round.
Friedrich Nietzsche said human beings are not capable of forgetting our history, and if we learn to use that knowledge wisely, it can help us overcome past mistakes. This is what sets us apart from cows and other ignorant beasts. We can remember and hope for justice. They have no history and cannot rise above momentary happiness. Possessing such knowledge, we must use it in the service of life — that is to bring us useful benefit. We must not be overwhelmed by the weight of the past and unable to act for the future. Likewise, we cannot live the unhistorical life of cattle. Without memory, we cannot construct languages by which to communicate or know to be thankful for our very lives (without knowledge of the beginning of our existence). We cannot be informed by the ages to act positively for the future and understand our role in and happily participate in our communities. And, if we cannot remember the past and see the larger picture, we cannot act to make society better.
Here is the danger of unhistorical thinking: The Supreme Court’s recent decision in the famed “Firefighter Case” (Ricci et al. v. DeStefano et al., No. 07-1428 ) turned upon legislation that was intended to rectify a great historical wrong. In the United States, we have long struggled with the legacy of slavery and segregation. In the 1960′s our society set about to address the inequities based on race that abounded. Title VII of the Civil Rights Act of 1964 prohibited discrimination in employment based on race. The purpose of this law was to stop employers from disparately treating minority employees or implementing rules or practices that disparately impacted the employment opportunities of minority employees. The law did not provide protection only for minority employees however. On the face of it, the legislation was racially neutral — you are protected from discrimination based on your race, whatever that race may be. In practice, however, the intent of the law was to assist minorities. White citizens (male) were not usually the victims of the kind of rampant discrimination that prevented blacks, Hispanics, and others from obtaining well-paying jobs that allowed for more than a meager standard of living. The law was passed with the intent of rectifying the economic and social inequity. It was, in Nietzsche’s thinking, a wise use of historical knowledge. We acted in the service of life out of our knowledge of past error.
In the Ricci case, however, the allegation was that white employees were denied employment opportunities because of their race. As the promotions test the firefighters took appeared to have a disparate impact on minorities, the local government did not rely on the results to make promotions. They were concerned that they had violated the disparate impact prohibition in Title VII. The white firefighters maintained that refusing to give them the promotions they’d “earned” by scoring well on the test meant that they were being denied opportunities because of their race. The Supreme Court’s conservative majority found on behalf of the white petitioners, in an opinion written by old white guy Kennedy, relying on an analysis of the acceptableness of the test itself. Although this was not unquestioned, the Court determined that the evidence didn’t conclusively indicate that the test was biased against minority members. Accordingly, it should stand and the results be used to promote the white and (1) Hispanic employees who scored well enough on the test for promotion. It is important to note that this decision actually flew in the face of precedent and undid the substantial case law on the subject.
In her dissent, Justice Ginsburg began by discussing the history behind the law — it’s purpose and the social ill it was meant to correct. This was something that the majority opinion did not take into account. Indeed, Ginsburg noted that even today, the fire department concerned here still bore lingering traces of the racist policies of the past that had been a barrier to minority advancement. The city had a 40% African-American and 30% Hispanic population in 2003, but only 9% of the senior officers in the fire department were black. Another 9% were Hispanic. Thus, though they made up the majority of residents (70%), the fire department leadership did not reflect that diversity. It is because of this continued disparity that the law must be assessed with the history in mind, the dissent argued. Ginsburg then went on to outline the problems with the test and the fact that the white and Hispanic firefighters had not suffered disparate treatment with the refusal to implement the results. She next cited the legal precedents, like Griggs v. Duke Power Company, 401 U.S. 424 (1971), that would apply to the case (which the majority opinion glossed over). In light of these precedents, the fire department had a legitimate concern that it would run afoul of Title VII if it implemented the test (disparately impacting the employment opportunities of minority workers). Accordingly, it had not acted in a discriminatory manner against white employees but in an effort to avoid discriminating against the minorities — which was the purpose of Title VII. The fire department did not, therefore, violate Title VII — it was abiding by it.
The majority opinion could only reach a disparate conclusion by ignoring the social, economic, and legal history bearing on this issue. In taking the tack it did, the Supreme Court’s majority perpetuated the racial inequities that continue to plague our country and communities and failed in the nobler human effort of correcting past wrongs. Their unhistorical approach prohibited action in the service of life. In short, the ahistoricity of the majority produced some legal bull-shit.
The interesting thing about the same-sex marriage debate in the United States is that it’s not focused on who people love — only on to whom they wish to make a partnership contract. You can’t legislate feelings, after all, but you can control their tax breaks. You are free to love whomever you want, but if you want the legal contract, you have to get approval from the state. Yes, the State of Oklahoma — or Mississippi or Nevada or whatever — in its infinite wisdom, gets to tell you if you can marry the person you select. This state power is not new, of course. Governments have been giving or withholding their seals of approval for ages. Homosexual citizens are certainly not the first to be denied the marriage contract.
In one corner, we have those that we prohibit from marrying for “scientific” reasons. These include cousins, brothers and sisters, and close relatives. The stated governmental purpose here is to prevent a proliferation of birth defects and other genetic abnormalities from inbreeding. In the other corner, we have those that we deny marriage for religious reasons. These include polygamists and bigamists. That prohibition in our country really grew out of the 19th century war against Mormons.
Then we have those that the government has discriminated against due to commonly accepted social norms. After the Civil War, when blacks became citizens and could enter legal contracts, many states took action to prohibit marriage between blacks and whites. The obvious inference here is that there were those who did not support white supremacy and disregarded social constraints. Their fellows, then, moved to restrict them by the force of law. In the wake of the civil rights movement a century later, the U.S. Supreme Court nullified such laws. The case that prompted the decision was Loving v. Virginia, 388 US 1 (1967). Interestingly, the opinion cited this from the lower court decision:
“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”
Apparently manifest destiny and the settlement of the New World undermined God’s great plan. Fantastically, it was the Pilgrim’s fault that Almighty God was thwarted. The Supreme Court disagreed. It determined that the right to marry — yes the RIGHT to marry — was fundamental and that the State had no right to bar citizens from choosing mates whose races differed from their own.
Interestingly, one of the cases that served as a foundation for Loving was Skinner v. State of Oklahoma ex rel. Williamson, Atty General of Oklahoma, 316 U.S. 535 (1942). Horrifyingly, that case concerns the forced sterilization of criminals. Back in the day, the law in Oklahoma allowed for the involuntary sterilization of those convicted of three or more felonies involving issues of “moral turpitude.” The idea was that they were degenerates (or, perhaps, debauchers) who would pass on their immorality genetically. By sterilizing them, the race could be purified of such ones. Mr. Skinner, whose crimes included stealing chickens, sued to preserve his right to procreate. The Supreme Court overturned the law, citing unconstitutional infringement. Justice William Douglas wrote: ”We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.”
In Skinner, and later in Loving, the Supreme Court definitively categorized marriage as a fundamental right that the State could not restrict without a legitimate governmental purpose. To date, no one has presented such a purpose to any court successfully in regard to denying same-sex unions. Only popular amendments have prevented court sanction in jurisdictions where it is not recognized. That is, the multitude of bigots — as in the days of racial segregation — stands between the fundamental rights of a class of citizens and their free exercise thereof.
Sometimes, I have to really work on my entries, and sometimes, the blogs write themselves. I decided to rant about Americans’ simultaneous and contradictory support for religious freedom and intolerance, and the perfect example fell into my lap. When I wrote the entry, I pointedly did not want to lambaste my fellow compatriots for being two-faced hypocrites. Rather, I thought it was a sign of our potential that we vacillate between our negative oppressive human tendencies and a nobility outside ourselves. At least we struggle with our consciences. There are other countries that do not even do that. There are oppressive theocracies, tyrannical despots, and ideologically intolerant governments that suppress alternatives without qualms. We may not have achieved the ideal in tolerance, but we do a damned sight better than a number of others on this planet. I thought it appropriate then, to give ourselves a little credit — and then renew our dedication to doing better.
Then, as if on cue, the never-ending fount of intolerance that is Oklahoma proffered perfect illustration of my point. One of our state legislators issued a call for a religious revival. Sally Kern, backed by the organization Reclaiming Oklahoma for Christ, held a press conference at the state capitol and asked citizens to sign her “Morality Proclamation.” Apparently, she has confused “proclamation” with “pledge,” but she’s only a former educator, so you can’t really hold that against her. The gist of the proclamation is that this country was founded on Christianity (as demonstrated by select quotes from John Adams, James Madison, Noah “Dictionary” Webster, and others) and that we have turned away from our founding religiosity, becoming a leading promoter of “debauchery” in the world (I am NOT making the wording up there). There’s a lot of “whereas’s” and “be it resolved’s” in the text, which almost manage to drown out the statements blaming our current economic crisis on gay rights, abortion, adultery, etc. and scolding the President (who is carefully not named) for embracing the aforementioned debauchery by designating this month social perversion celebration month and skipping the national day of prayer (which is apparently not everyday). I am proud to say that a good deal of the public response to Kern’s call has been smart and skewering. Honestly, nothing beats the witty and knowledgeable sarcasm of escapees from the religious system here. We are bitter and we are amusing.
Annoyingly, Kern used this public setting, thereby involving tax dollars, and her position as a paid representative of the State to promote her religious convictions. She is welcome to do so on her own time and at her own expense. When she does this as a representative, however, she treads intentionally and clumsily on the Constitution and religious liberty. I know you’re thinking of the U.S. Constitution when I say that, but I was actually talking about the state Constitution, which coming later and benefiting from history, is broader and more explicit in its protections. The federal government can’t abridge your right to freedom of religion, but the State of Oklahoma promises “perfect tolerance of religious sentiment.” That’s right, not just tolerance — perfect tolerance. Now, to sign Kern’s pledge, you have to acknowledge faith in the “One True God and His only Son” and commitment to the “Holy Bible.” According to Kern and her crew, you can’t be a moral or religious person if you are not a Christian. I don’t know how on earth she thinks promoting this view demonstrates perfect tolerance for Judaism, Taoism, or even regular old run-of-the-mill atheism. Clearly, the message is that members of other religions besides Christianity or those who profess allegiance to no religion at all are immoral persons, or as I prefer to call them, “debauchers.” This is a slanderous insult to debauchers everywhere. Further, I question how dedicated Kern is to being a disciple of Christ with her rejection of debauchers, a class with which Jesus spent all of his time. In any case, when, as a representative, she makes the toleration in our state imperfect, she has violated the law of the land — which she took an oath as an agent of the state to uphold and protect.
What Kern overlooks by tracing our Christian roots to the Founding Fathers back east is the history of a diverse people here in this state. Prior to statehood, Oklahoma was two territories: The Indian Territory, where the Indians who had been forcibly resettled from back east resided, and Oklahoma Territory, which had been opened to white settlement in the 1890′s (and hosted a number of debauchers and outlaws prior even to organization as a territory). Originally, in 1905, the leaders of the Indian nations assembled and adopted a constitution, pressing for statehood separately. When Congress mandated that the two territories be joined to form one state, a second constitutional convention was held the next year. This assembly included whites and Indians; the co-mingling in the state even then was extensive. Future governor and chair of the convention drafting the final state constitution, William H. Murray, was “intermarried” with a member of the Chickasaw nation and served first at the Indian Territory convention in 1905. The constitution produced out of that first convention largely was reproduced in the second. So, from the beginning, the non-Christian influence on our government was significant. Our founders were a diverse lot — many of whom as Native Americans were not Christians. While our state constitution seems to prefer Christianity in places in the text, the promise of perfect tolerance and prohibition against placing religious tests on civic participation demonstrates an intentional rejection of that as the state religion. Certainly, the racial and ethnic mix of the residents must have prompted the broad statement of religious tolerance enshrined in the document. The fact that it refers to “Almighty God” but doesn’t designate which god that is or which religion falls under his guidance indicates that the vagary was an intentional means to be inclusive (which isn’t to say our founders weren’t a bunch of bigots and racists, because they were). At least on the religious question, they left a little wiggle room for non-Christians and a substantial mandate for the State. The obligation was not merely a limitation on the government but also a duty for it to assure that all persons in this state have protection from religious interference. This is a job the State hasn’t been taking seriously, perhaps, but one that remains. Thus, the perfect tolerance clause obliges the State to shut Kern the hell up. Morality is important, but tolerance is essential. Or, as the New Testament puts it:
“Therefore thou are inexcusable, O man, whosoever thou art that judgest: for wherein thou judgest another, thou condemnest thyself; for thou that judgest does the same things. But we are sure that the judgment of God is according to truth against them which commit such things. And thinkest thou this, O man, that judgest them which do such things, and doest the same, that thou shalt escape the judgment of God? Or despisest thou the riches of his goodness and forbearance and long-suffering; not knowing that the goodness of God leadeth thee to repentance? But after thy hardness and impenitent heart treasurest up unto thyself wrath against the day of wrath and revelations of the righteous judgment of God; who will render to every man according to his deeds; to them who by patient continuance in well doing seek for glory and honor and immortality, eternal life: but unto them that are contentious, and do not obey the truth, but obey unrighteousness, indignation and wrath, tribulation and anguish, upon every soul of man that doeth evil, of the Jew first, and also of the Gentile: for there is no respect of persons with God.” Romans 2:1-11
P.S. You are welcome to come to Oklahoma City July 24-5th for the Reclaiming Oklahoma for Christ annual convention, or you can come to Tulsa that weekend for a two-day rock festival that is sure to sport some serious debauchery (NOT at taxpayer expense).
Last year, in honor of Independence Day, I nominated a person to trump replace Sean Hannity as a “Great American.” The woman worthy of that title was Alice Paul. This year, I’d like to continue the tradition of naming my idea of a great American, but I opted to go a little edgy with my selection this time. One of my beefs with the adoration of the Founding Farters is that they get made over into these paragons of virtue, without blemish or stain. In real life, men are only human and they have feet of clay. Few among us are not a contradiction of morality and injustice made flesh. Even fewer of us are able to think outside of the ideas of our time. I have selected, then, a man who was on the one hand a slaveholder and on the other a champion of tolerance. I nominate him for recognition as a patriot because he was a man of convictions and mercy — something for which we rarely celebrate people in America.
Alexander William Doniphan was a slave owner and a lawyer. He settled in Missouri and became an officer in the state militia, as befitting his rank. Those were the days when male citizens served regularly in their state militias — particularly in states like Missouri which, even in the 1830′s, still experienced some conflict between whites and American Indians and general frontier-type disorder. Doniphan rose up the ranks to Brigadier General by the time the Mormon War began in 1838. In 1846, he led a group of Missouri volunteers west to fight for the U.S. army in the Mexican-American War. Doniphan led attacks against the Mexicans in Santa Fe, El Paso, and even Chihuahua. He earned the rank of Colonel along the way and gained notoriety for his leadership. As the Civil War loomed thereafter, Doniphan embraced a moderate position, calling for the gradual emancipation of slaves (and, remember, this is a guy who would forfeit his property under that arrangement). A decorated veteran, he refused to fight for the Confederacy and declined a commission in the Union Army also because he did not want to fight against his southern compatriots. Doniphan, a noted state legislator in Missouri, opposed secession and worked to keep the State neutral (or as neutral as it could be). He even served at a peace conference in Washington, D.C., attempting to resolve the crisis through diplomacy. When war inevitably came, Doniphan returned to private life and practiced law in St. Louis before returning to Richmond (MO) for his remaining years. He died in 1887.
It is not, however, these accomplishments or even his belated repudiation of slavery that prompts my nomination here. It is his service as a soldier. In these times, when we as Americans are ashamed by the behavior of a military that tortures prisoners and disregards the principles of human rights and international law protecting all people from abuse, I want to recognize him as a soldier of character who once refused the order to kill and defied his superiors to promote religious tolerance.
In the 1830′s, the Mormons had migrated to Missouri under the leadership of Joseph Smith. Hostilities between their growing numbers and area residents escalated over time. In 1838, violence erupted. The non-Mormon majority in the state sought to force the Latter Day Saints out, acting on widespread religious bigotry. Ultimately, Governor Liburn Boggs issued an order to expel or “exterminate” the Mormons. By that time, Doniphan and his soldiers held a number of them — including Smith — at a military camp. Orders arrived from his superior, Major General Samuel Lucas, specifically commanding Doniphan to shoot them in the morning. Doniphan not only refused, he also sent Lucas a reply that stated that if he (Lucas) attempted to do the deed himself, he (Doniphan) would “hold you personally responsible before an earthly tribunal, so help me God.” The Mormons survived, although they were later driven from the state and Smith was murdered by a vigilante mob. In various court proceedings, Doniphan — who was not a member of their sect — represented them while they remained in Missouri.
Doniphan didn’t rely on that age old excuse “I was just following orders,” and commit the act he knew to be immoral and illegal. What’s more, he had the courage of his convictions to not only do what was right, but to take on his commander to assure that he also did not do the evil deed. Does the soldier get more valiant or nobler than that? Is there a greater example of dedication to principles? In this day and age when religious intolerance rears its ugly head in “Morality Proclamations” and discrimination towards Muslims and others, can we do better than look to this example for inspiration? An angel Doniphan was not. But, a man of principle he became and thereby, also, a great American.