The Right to Privacy – The 9th Amendment – Gay Marriage

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Ohg Rea Tone is all or nothing. He is educated and opinionated, more clever than smart, sarcastic and forthright. He writes intuitively - often disregarding rules of composition. Comment on his posts - he will likely respond with characteristic humor or genuine empathy. He is the real-deal.

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The Right to Privacy – The 9th Amendment – Gay Marriage

Our Founding Fathers were masters of compromise.  Some wanted specific rights established in the form of a Bill of Rights.  Freedom of the Press, Freedom of Assembly, Freedom from search and seizure, Freedom to bear arms, Freedom of speech, we become redundant – suffice it to say that some rights were considered so important that the Constitutional framers insisted on their inclusion.  Others argued that by inserting specific rights it would logically follow that any rights not mentioned would be in the domain of the Federal Government.  Their compromise – the 9th Amendment to the Constitution.  But the reality is that almost all of the Amendments speak to the right to Privacy.  This has been affirmed many times by a variety of Supreme Court rulings.

Hold on a minute reader – we will get to gay marriage in a moment – first a little background.

Supreme Court Background:

Ninth Amendment – Unenumerated Rights- From FindLaw

Amendment Text | Annotations

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Essentially they said that just because we do not specifically mention certain rights of individuals does not mean that they do not have those rights.

The right to privacy was articulated again by the Supreme Court in 1965.  Connecticut had a state law against contraceptives – even between husband and wife.  The Supreme Court ruled against the state.  Cited in the defendants arguments were the 14th Amendment, the 1st Amendment, the 4th Amendment, the 5th Amendment, and the 9th Amendment.  Each of these amendments have been used in a variety of cases to affirm the right of privacy to individuals.

In the case of contraceptives the Supreme Court noted the very idea of the government entering into a bedroom to search for devices was a repulsive idea.  This writer agrees.  The Court was more specific and more elloquent:

[ Footnote * ] The Court said in full about this right of privacy:

“The principles laid down in this opinion [by Lord Camden in Entick v. Carrington, 19 How. St. Tr. 1029] affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offence, – it is the invasion of this sacred right which underlies and constitutes the essence of [381 U.S. 479, 485] Lord Camden’s judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man’s own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation of that judgment. In this regard the Fourth and Fifth Amendments run almost into each other.” 116 U.S., at 630 .

The court used great words – like liberty and security . . . invasions on the part of the government . . . the sanctity of a man’s home and the privacies of life . . . the invasion of his indefeasible right of personal security, personal liberty and personal property. . .

The government clearly has no right to invade our personal lives.

Privacy and Gay Marriage:

On November 4, 2008, the voters in California passed Proposition 8 – a ban on Gay Marriage.  Much is being made of this vote – with people on both sides of the issue ready to take up arms.  This writer believes that the right to marry whomever one wants is implied in the United States Constitution – which we believe takes precidence over any State initiative.

We in America are slow to embrace change.  The country was aroun a hundred years before the ban on slavery, 150 years before women could vote, and nearly 2000 years before total civil rights were granted.  Sadly, the process took a while longer to recognize the rights of inter-racial marriage.

The Gay Marriage issue is a bit more complicated than women’s rights to vote, or inter-racial marriage.  Those two issues were of mere prejudice and bigotry and it took a while for a change in the cultural paradigm.  Gay Marriage is different because of religion.  There are many folks who believe themselves to be Christian – and they believe the Christian faith is opposed to homosexual behavior.  That is their right.  Changing religious paradigms are much more complex.

The hard-nosed take favors the right to gay marriage – because this country is ruled by law – law that must adhere to the provisions of the Constitution.  While we respect the right of people to worship whatever faith they choose – we do not respect the imposition of religious values on society as a whole.  And we believe that was the intent of the framers of the Constiitution.

There may be practical, if not wholly just, temporary compromises.  We acknowledge these compromises in the interest of moving forward before a complete cultural paradigm shift is in place.

One compromise offered is the idea of a Civil Union.  This concept eliminates some of the discrimination against homosexuals.  For instance, joint ownership of property, visitation in hospitals, and rights of inheritance might be covered in a civil union.  But the Civil Union does not completely eliminate the prejudice.  One striking injustice is in the Federal Tax Code.

The Federal Tax Code is often used to promote certain behaviors deemed healthy for society.  Marriage tax deduction is an example.  Energy credits for home insulation is another.  So a Civil Union will not address all of the issues of discrimination.  Our suggestion would be an overhaul of the Federal tax code to recognize civil unions equally with religious sanctioned marriages.

There are other means of loosening the cultural grip on people who are different than us without complete submission. The term marriage has particular meanings to many people – and we should respect the cultural diversity of these folks.  Being fair sometimes means that we have to give people time to adjust to new paradigms.

Sometimes we have to be practical – that is all we are saying.  We are not advocating gay marriage, but neither do we deny the same rights to gay couples as are enjoyed by heterosexual couples.  We believe there are practical political solutions.

And we believe our country should continue to move forward in eliminating discriminatory prejudice.

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