Op-Ed

Will my marriage be constitutional?

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I married a man. We didn’t expect any surprises after 20 longtime-companion years. Recently wed male friends tell us they’re bickering more, like the Kramdens, if Alice were a man. For us, no, though the strange words haven’t settled in fully: “husband,” “spousal benefits,” “married filing jointly.”

The Supreme Court’s 2015 Obergefell v. Hodges decision giving me the “equal protection” of marriage solved the problem largely by side-stepping the largest, most vocal part of it: the religious objectors. For these passionately displeased residents, the court has destroyed forever the idea of marriage and the free exercise of religion. This momentous court action cured the current malady, but as we’ve seen with Roe v. Wade, if we don’t finish the course of the antibiotic, a super-virulent bacterium returns, mutant.

Here it is: House Bill 2802, the federal First Amendment Defense Act, insisting that your right to discriminate outweighs my right not to be discriminated against, as long as you mention religion. Civil rights with an asterisk. Void where prohibited. This FADA applies specifically to views on marriage, but, if passed, we can assume it will be applied eventually to all “culture war” issues. Inject the First Amendment’s free-exercise clause with performance-enhancers and watch it devour the anti-establishment clause and everything else in its path. Jim Crow could really have had legs if segregationists had discovered this super-religious liberty earlier.

Last month the U.S. Commission on Civil Rights released its report on this growing legal conflict, titled “Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties.” The group hug invited by the report’s title was bitterly rejected across the religious-conservative spectrum: how dare the commission suggest that “religious liberty” should “coexist” with any other civil right. Sen. Orrin Hatch wrote to the commissioners of his deep dismay that the report fails to elevate religious liberty above all other rights.

Will my marriage last? Probably. Will my right to marriage outlast religious liberty? A red election, a retiring justice, courts will decide and things could get ugly. I never wanted an unconstitutional marriage, lumped in with Bowers and Dred Scott — notorious court decisions, later overturned, that get frowny faces on social media. Desperate for proof that James Madison himself would be shouting “Love Wins!” I had an espresso and read the full Obergefell opinion.

High court cases don’t hinge on decisive moments: a rhyming couplet, a glove, shrunken from dry-rot, forced triumphantly onto a hand. It’s more like Debate Club. Justice Anthony Kennedy argues that my marriage is valid because this vital social institution “responds to the universal fear that a lonely person might call out only to find no one there.” The dissenting justices condemned the majority’s reasoning as loopy, insisting that the definition of marriage is universal and unchanging: a man and a woman uniting solely for the purpose of child-rearing.

So, we never have proof of constitutionality, only opinions of it, and opinions change. The person who keeps me from calling out in loneliness agrees, we needed more than the right to life-partnership and commitment ceremonies. We’d watched Mary, at Downton Abbey, debunk repeatedly the idea of one universal and unchanging definition of marriage. We wanted the right to lock eyes across a crowded room, have three Martinis and drive to Vegas to get hitched. We wanted the right to marry for health insurance, or to expand our goat herd, or, indeed, for love, just like millions of couples before: teenagers, 80-year-old sweethearts, King Henry VIII and Anne Boleyn. Well, maybe not them.

Long before Gov. Pat McCrory joined hands with preachers in support of House Bill 2, our state’s legislative leaders stood with preachers condemning my marriage. Now, on grounds of religion, my Orange County officials can legally refuse to perform same-sex marriages. Our Hillsborough magistrate didn’t refuse, but the marriage certificate we were given tells us our “Holy Matrimony” is “According to the Ordinance of God.” Troubled by the contradiction, I’ve worked with our Register of Deeds to have the language for all future certificates changed to something less religious, more constitutional. My own First Amendment Defense Act.

Marriage, bathrooms, abortion, vaccinations: Cries of religious freedom are increasing. The Bill of Rights, created to protect the minority from the majority, contains two religion clauses, both essential. Whatever happens in November, it’s imperative that the high court take an opportunity soon to remind legislators, judges and citizens of Thomas Jefferson’s extraordinary, critical insight: America guarantees the right to preach, protest and debate our deeply held beliefs, because we’re only required to act, not think, in accordance with the law.

Jimmy Holcomb of Efland is a correspondent for the Triangle Freethought Society.

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