Looking at equality, legally and personally

by Chris Markham. 0 Comments

A number of years ago, I, like any lawyer, had to sit for the two day marathon that is the bar exam. I often joke that, on my deathbed, I can rest assured that that day will only be the third worst day of my life.

To avoid any mechanical malfunctions, I stayed in a hotel close to the testing site for the night before and during the exam. I remember driving along 495, stressed to the gills and trying not to think about all of the fun that awaited me.

When I entered the hotel to check in, there were a ton of people, just like me. But instead of acting like they were walking the last mile to the electric chair (as I was), they were engaged in heady, exciting discussions. It seemed as though every attorney wannabe was in the lobby, atrium and restaurant excitedly discussing something.

I caught someone as they walked by and asked what was the hubbub. He excitedly told me that then-president Bush had proposed an amendment to the Constitution defining marriage as between a man and a woman. Good stuff to take your mind off of the bar exam, I guess.

In many columns, I have stated that I often have to separate myself into two people when discussing legal issues: the individual and the attorney. Most of us do it that way, and that evening was no different. There were law graduates of every type, color, orientation and political background. Yet each and every one of us thought the same thing.

This was a colossally bad idea.

The Constitution is not to be amended on the whims of political fads. We did that once (prohibition) and look where that got us. Civil rights, equality, expanding the voting franchise all were excellent additions to the document, and they all have one thing in common. They enlarge rights to include people that heretofore were not included.

The last thing the Constitution needs is to exclude people from anything. That is not what this country is about.

Over the past few days, it appears as though North Carolina underlined and highlighted their position as one of the 44 states in the union that outlaws same-sex marriage. In response, President Obama stated that while he, as an individual supports same-sex marriage, it is a state issue, and his office would have no statement on it either way. The reaction to these statements is a column for another day.

Constitutionally, marriage is a right afforded to all people under the Ninth Amendment. It doesnt specifically say that, but, given the other rights enumerated, and the Supreme Courts interpretation of the Amendment through its many decisions, the right to marriage does indeed exist. There is no qualifier that said marriage has to be between a man and a woman; likely because the idea of same sex unions had yet to penetrate the public consciousness back in the nineteenth and early twentieth centuries. As such, the ability to marry another human is firmly ensconced in the Constitution.

However, states are able to make laws regarding issues that they feel arent directly addressed by the federal government. As such, states have a wide leeway to pass legislation regarding, say, immigration and abortion (to an extent, as long as there is no undue burden for procuring one).

However, this is where my personal side splits from my attorney side. Legally, as far as I can see, amending the Constitution for the above-mentioned purpose is wrong and should not be tolerated. A right to marriage exists.

States, throughout history, have come up with some pretty disgusting laws on their own, such as slavery and segregation. True, that came down from the feds, but states had interesting ways of implementation.

Personally, in this instance, the federal government should take the lead in allowing same-sex unions, simply because we are a country that embraces inclusion, and any attempts weve ever taken to limit rights has ended in disaster and bloodshed.

If youve ever met someone who has been in a same-sex union, and one of the members passes on, it is a nightmare for the surviving member to receive benefits, life insurance payments and their fair share of their partners estate. If I live with someone for a number of years and am unable to be at the funeral or even have a say in how the deceased is sent off, I would be furious at my exclusion in these matters, and even more livid at having to fight to ensure my partners final wishes were kept.

Theres an old joke that goes something like I dont see why same-sex couples cant get married they should be as miserable as the rest of us. Now THATS equality.

Christopher Markham writes a regular column for fredericknewspost.com.

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