Wednesday, January 15, 2014


In the cutthroat, largely uncensored world of college sports message boards, especially those run for or by fans of a particular school's teams, epithets against other schools' teams, players, and fans abound creatively.  These range from the mildly annoying "LS who," to the censoring algorithm that humorously (and fairly accurately) replaces the word "hell" with "Starkville," to the profane, excretory, or aggressively homophobic.

When my team, the Razorbacks, have taken on Oklahoma, my hands-down favorite has been to refer to them, all in good fun, as "Mobilehoma."  But equally popular appears to be "Oklahomo."  I don't enjoy or even like that one, but--and I have to state an apology to those friends and relatives who live in or come from Oklahoma--recent news events have forced me to reconsider.  And it's a good thing.

By now, you've almost certainly heard that a federal judge in Oklahoma has struck down that state's ban on gay marriage.  Oklahoma thus follows Utah down the path toward marriage equality.  It's going to happen.  It really can't be stopped, because enacting official discrimination against homosexual couples, as Oklahoma has done (and as many other states have done) is a pretty clear violation of the Equal Protection Clause of the Fourteenth Amendment.  It will take some time for these cases to work their way through the courts, but there is simply no longer any intellectually cognizable argument in favor of continuing discrimination. The Supreme Court has already signaled which direction it will go in when these cases come before it.

To me, however, the far more interesting thing to watch has been the reaction of the right wing to marriage equality's march across the heartland.  (For some real gems, go read the comments on the Tulsa World's report of this decision.)  Predictably, most of these people are prepared to hide their hate behind the Bible.  The more sophisticated of them are clinging to long-discredited theories of states' rights.  Some of them are even blaming Obama, who insofar as I am aware had nothing whatsoever to do with this case.

I cannot help but highlight the views of one of those commenters.  The argument is uncharacteristically grammatical and sounds reasonably educated, if not intelligent:

U.S. Federal Judges overturning a question that a state's citizens had unanimously* voted for or against at the ballot box is usurping a state's rights and sovereignty, and the will and desire of the state's people. It is the federal government ruling by fiat. No matter where you stand on an issue, that cannot be allowed. U.S. Federal Judge Terence Kern's decision must be challenged. If we don't win, then our state, every state, will in effect, lose its sovereignty. And that will go directly against the U.S. Constitution. Obama and Liberals are making a power grab. We must not let them get away with it.
* - Yes, she really did say "unanimously."

There are a lot of things wrong with this, of course.  I will leave aside the factual inaccuracies.  This person and the millions of others who agree with her simply don't understand some basic facts about the government and political processes of the United States.  True, the Constitution sets up a general condition of dual sovereignty; the federal government holds delegated powers over some aspects of the law and American life, and the state governments hold other powers.  States are sovereign over their territories.

Except when they're not.

Alexander Pope once wrote that "a little learning is a dangerous thing," and here is another case of that in action.  The Constitution wasn't final when we passed the Bill of Rights, including the Tenth Amendment that provides the source of the anti-gay side's argument.  We kept going, adding 17 more amendments.  Enacted in the aftermath of the Civil War, three of those amendments impose some rather serious restrictions on state sovereignty.  For example, the Thirteenth ended slavery in the United States.  States were no longer free to allow humans to own other humans.  The Fifteenth guaranteed against racial discrimination in voting rights.

But the Fourteenth?  It's the grandaddy of them all.  The Fourteenth not only restricts states in what they can and cannot do, and guarantees that states must provide the due process of law in regulating their citizens, but also applies to the states substantially all of the same restrictions imposed in the Bill of Rights directly on the federal government.  Before 1868, there was nothing in the Constitution that expressly prohibited a state, for example, from recognizing an official religion or seizing a person's property without a warrant.

The Fourteenth makes the will and desire of a state's people irrelevant when the will and desire are to deny a group of people the equal protection of the laws.

The Fourteenth has made "Oklahomo" a reality.  And it's a beautiful day.

Over the next couple of years, there will be more and more of these.  And they will keep getting decided in this way.  The genie is out of the bottle, and no incantations from Exodus, Romans, or Corinthians will get him back it.  Freedom marches, often slowly, but always forward.

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