I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Friday, June 02, 2006

Senator Bill Frist demonstrates his ignorance of core American values

By Hume's Ghost

This June, two of the primary issues that Bill Frist plans to bring to a vote in Congress will be Constitutional amendments to prohibit flag-burning and gay marriage (h/t Alonzo Fyfe). Apparently, writing homophobia into the United States Constitution and turning the flag into a sacred icon will help us win the "Long War" against terror, reduce the widening income gap, reduce the trillion dollar deficit, bring health care to the 45.8 million uninsured, improve our education system, fix the flawed electronic voting systems, make gerrymandered districts competitive, put an end to D.C. corruption, reduce the 15,000 dollar average household debt, etc. Apparently, we will not be able to confront these problems unless we can make sure that gays don't have legal protections and benefits that encourage them to stay in stable monogamous relationships and that people don't set cloth on fire.

Gay Marriage

There are already several excellent arguments circulating around the blogosphere opposing an anti-gay marriage amendment on the grounds that it violates federalist principles, with Volokh Conspiracy contributor Dale Carpenter arguing in a paper for the Cato Institute that such an amendment is "unnecessary, anti-federalist, and anti-democratic", concluding that "whatever one thinks of same-sex marriage as a matter of policy, no person who cares about our Constitution and public policy should support this unnecessary, radical, unprecedented, and overly broad departure from the nation's traditions and history," so I will here offer a different reason that this amendment should be opposed that is unrelated to the legal issues.

Actually, the reason to oppose this amendment isn't mine, although I agree with it. The reason was expressed in a speech given by freshmen legislator David Englin on the state floor in Virgiana back in January. A bold speech considering it was only Englin's third day in session. In it, he quotes the following from George Washington's Letter to the Jews of Newport, Rhode Island (1790)

It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection, should demean themselves as good citizens.
"Gives to bigotry no sanction, to persecution no assistance." Let that swirl around in your brain for a second, as it's a powerful sentiment. That is exactly what a Constitutional amendment to prohibit gay marriage would do - it would give bigotry sanction, to persecution assistance.

America is better than that. We have nothing to fear from gay marriage. Heterosexual marriages will not magically dissolve. The sanctity of marriage will not be threatened. I have to wonder if anyone who says such a thing understands what the sanctity of a marriage is in the first place. A marriage can not be given sanctity by the state or the church, a marriage is given sanctity by the love and commitment that those who enter into it bring. That is the sanctity of marriage, and any marriage so feeble that it is threatened by someone else being in a loving committed relationship is a marriage that had no sanctity to begin with.

Senator Frist declares that "marriage is under attack." What is under attack is the notion that the purpose of the Bill of Rights is to protect each citizen's opportunity to pursue happiness as he/she sees fit to do so without state interferance.

Flag Burning

In Pakistan the Koran is holy and sacred, and to burn it is considered blasphemy, a crime punishable by death. I submit that a Constitutional amendment to prohibit flag burning is also a blasphemy law which differs in the degree of punishment, but not in kind.

This amendment would turn the flag into a sacred icon, something that is at least a spiritual violation of the Establishment clause. Setting aside punishment, what is the difference between Pakistan's prohibition of Koran burning and prohibition of flag burning? There is none, the reasoning is the same: that the act is a dangerous attack against what each represents, Islam and America, respectively.

A flag burning amendment is worshipping a false idol because it puts the symbol before what the symbol represents: free speech. It is an attempt to disguise nationalism as patriotism, but there is nothing patriotic about valuing a flag more than speech; and patriotism can not be spread by legislating orthodoxy.

The defender of this amendment will start by saying, "I'm for free speech, but ..." and then continue on to explain why he or she actually is not for free speech. Like Senator Frist, this person engages in the Orwellian effort of describing his or her opposition to free speech as a defense of free speech.

The flag is a symbol, but that symbol has no meaning if we put more value on defending an inanimate piece of cloth from "physical assault" than we put on defending what it is supposed to represent. Flag burning does not threaten our freedom, but blasphemy laws do.

*And as Alonzo astutely observes

[I]f this amendment gets passed, then the flag will stand for censorship rather than freedom. It will stand for the use of government authority to punish those who say things that others do not want to hear. The flag will become a symbol of opposition to the principles that most of those who fought under it were seeking to defend -- the right of people to express unfavorable opinions without being punished for it.

Both these amendments contradict core American values, which is what makes it so noxious to see them being used as divisive politcal tools. Anyone who would at a time when our nation is faced with such significant problems waste time attempting to write bigotry and censorship into our constitution should be ashamed.

*Not included when first posted due to transcription error from my draft copy.

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