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.