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Britney Spears should be named the pinup girl for the Defense of Marriage movement in America. For a very short time, Britney Spears became Mrs. Britney Spears Alexander during a weekend service in Las Vegas. Apparently, the couple showed up at the Little White Chapel without a marriage license in hand, but were quickly transported by limousine to get one. Regarding her exercise of the right to heterosexual marriage-that some claim must be protected from monogamous, committed gays and lesbians-Spears said: “It was just crazy, man. And we were just looking at each other and said, ‘Let’s do something wild, crazy. Let’s go get married, just for the hell of it.’ “ And so they did. Changing landscape On June 26, 2003, in Lawrence v. Texas, the U.S. Supreme Court declared unconstitutional all state sodomy statutes. The court rejected majoritarian morality as a legitimate rational basis for the state’s interference in the most intimate relationships of its citizens, stating that the two gay men who brought the suit, along with all other people, “are entitled to respect for their private lives,” and that the “State cannot demean their existence or control their destiny by making their private sexual conduct a crime.” Justice Antonin Scalia was unhappy with the outcome but correctly noted in his dissent that the court’s decision “dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.” Within six months of Lawrence, the Massachusetts Supreme Judicial Court, in Goodridge v. Dept. of Public Health, held that it was unconstitutional under the Massachusetts Constitution to deny to same-sex couples the right to participate in civil marriage. The court drew a line between “civil marriages”-those based upon a civil contract to which flow the civil rights, benefits and obligations offered by the state-and “religious marriages.” The court defined the latter as those based upon some religious or ecclesiastical recognition of the relationship within some agreed-upon belief system. In Goodridge, the court was dealing only with civil marriage, because, lest any of us forget, the First Amendment prohibits the state from involving itself directly in the religious construct underpinning religious marriage. The court redefined civil marriage in a constitutionally permissible way, holding, without qualification, that “we construe the meaning of civil marriage to be the voluntary union of two persons as spouses, to the exclusion of all others.” Contrary to what some commentators, including some elected officials in Massachusetts, have been saying, the court did not provide the Legislature 180 days to craft a civil union scheme that would avoid the court’s clear mandate: namely, that all laws allowing civil marriage must include same-sex couples. The court merely gave the legislature 180 days to revise all statutes to reflect this redefinition of “civil marriage.” Following this decision, religious conservatives assured everyone that this was yet another sign of the end of times, unlike all other signs of the end of times that religious zealots have identified over the past 200 years of American history. Underneath all of this rhetoric was a profound forgetfulness of our history when it comes to the invocation of God or the gods in support of morally repugnant exclusionary laws. Forgotten were the words of the trial judge in Loving v. Virginia who appealed to God and the Bible and some understanding of religious morality in upholding the Virginia statute prohibiting interracial marriage. The simple fact is that when religion and sacred writings have been selectively used as support for exclusionary principles, we as a nation have always regretted it later and been the poorer for it. The Supreme Court understood this in Lawrence, when considering sodomy laws, and earlier in Loving, when it declared unconstitutional all state laws prohibiting interracial marriage. So did the Massachusetts court in Goodridge. However, these changes can be painful. For example, a year after Loving, polls found that approximately 70% of Americans still believed interracial marriage was wrong and should be restricted, which shows the danger of using poll numbers as the moral barometer for civil rights in America. A civil contract Civil marriage is a civil contract from which flows certain rights, benefits and obligations that should not be denied to America’s gay citizens, while religious marriage will always be a decision of religious bodies. Recognition of same-sex civil marriages will never result in any religious organization being forced by the state to conduct gay marriages against its religious belief, and basing a call to amend the Constitution on such a prediction is simply dishonest. The Spears incident offers us a glimpse into the inconsistency and hypocrisy surrounding the sacredness of the civil marriage experience in America. She can have a civil marriage just for the hell of it. Yet, my partner Paul and I, who have been together for more than a decade and have had a religious marriage, are denied the basic civil contractual rights at issue-but only for the present moment. As the poet Allen Ginsberg wrote, “It occurs to me that I am America.” Jack B. Harrison is a member in the Cincinnati office of Frost Brown Todd and an adjunct professor at the University of Cincinnati College of Law. He and his partner of 10 years, Paul Brownell, live in Cincinnati.

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