Jamie's Testimony Before the Maryland State Senate
Judicial Proceedings Committee

On Wednesday, March 1st, at the invitation of Equality Maryland, Jamie testified in front of the Maryland State Senate against the proposed anti-gay amendment that would write discrimination into the state Constitution.

My name is Jamin Raskin and I am a professor of Constitutional Law at American University's Washington College of Law. I live in Montgomery County with my wife and three children.

Tom Paine taught us that a Constitution is not an act of government, but of "the people constituting a government."

So this is no ordinary legislative proposal before you but an effort to redefine our social contract. You have been offered the chance to become the first Legislature in Maryland history to subtract and exclude liberty and rights from our Constitution.

It reminds me of the 18th Amendment, Prohibition, which we adopted at the national level in 1919. The outburst of self-righteous moralism which produced this amendment eventually subsided and Prohibition was repealed after fourteen bloody and disastrous years.

However, as misguided and doomed as Prohibition was, it at least had a public policy rationale, which was to get rid of the social ills associated with drinking, and it applied to everyone equally.

This proposed Amendment has no public policy rationale other than prejudice and it falls exclusively on a vulnerable minority.

As far as I can tell, the argument for writing marriage discrimination into our Constitution rests on essentially theological premises: God forbids gay marriage; my church opposes it; it violates natural law; and so on. But these arguments reflect a basic confusion about the American Constitution and our framework of liberty.

Under our First Amendment, the State may never dictate to a church who it must marry. If the government wants to force a church to marry inter-faith couples or interracial couples or a couple of people who had been divorced or a gay couple, but the church does not want to marry these people for its own theological reasons, the government loses and the church wins. Under the Free Exercise Clause, a church may marry only those people it wants to marry and reject the rest even for reasons that other people may consider narrow-minded, stupid or prejudiced or indeed for no reason at all.

But, at the same time, individual churches or even coalitions of churches may never dictate to the State who it may marry. Even if a group of large churches decides that it is irreligious or sacrilegious or just plain evil for people to marry outside of their faiths or across racial lines and the churches mobilize their members to lobby the state legislature to unanimously pass a law against miscegenation or inter-faith marriage, these law will be struck down. They violate Due Process, Equal Protection and the Establishment Clause.

In 1967 the Supreme Court in Loving v. Virginia struck down Virginia's law against whites marrying African-Americans, Asian-Americans and Hispanics despite the fact that it was overwhelmingly popular and its champions invoked Biblical authority for its legitimacy. The Court found that Equal Protection and the Due Process right to marry are supreme in America; they control and displace discriminatory state marriage laws, even ones based on religious ideas that majorities passionately endorse.

Thus, when I hear testimony from my fellow Marylanders about how ending statewide marriage discrimination would collide with their church beliefs, my response is simple and, I hope, reassuring: Your church will never have to perform a marriage ceremony of any gay couple or indeed any couple of any kind that it disapproves of. If the state tries to force your church to marry anyone, I will gladly represent your church pro bono to stop the state from imposing its orthodoxy on you and interfering with your freedom to discriminate as a religion.

But the irony here is that the State today is stopping many churches and temples from marrying gay couples that the churches want to marry. That is, the State today is violating the rights of many churches--including Unitarian, Episcopal, Presybeterian and Jewish congregations, among many others--who seek to perform lawful weddings for their parishioners but may not simply because other groups of citizens think it would be wrong for them to do it.

Because America is for all its citizens regardless of religion and because so many churches have so many different belief systems, we are governed here not by religious law but by secular law. The rules of civil marriage--the license that the State grants you to marry--must be determined with respect to the federal and state Constitutions, not particular religious claims, no matter how fervently held.

And the constitutional principles are clear. First, Due Process protects the fundamental right of all consenting adults to marry. This is a right so sweeping that it covers even people who marry multiple times like Elizabeth Taylor, people who get married on television game shows like Who Wants to Marry A Millionaire, deadbeat dads who seek to remarry, see Zablocki v. Redhail, 434 U.S. 374 (1978), and convicted prisoners, see Turner v. Safley, 482 U.S. 78 (1987), including murderers on death row, many of whom have married people they have met by mail. The fundamental right to marry actually includes even gay and lesbian citizens, who have been able to marry for centuries so long as they would consent to marry people they could never have a successful marriage with--that is, straight people of the opposite sex. And who knows how many thousands of unhappy marriages of this kind there have been? In any event, the Supreme Court has said that the right to marry is fundamental for all citizens.

Second, Equal Protection gives people the right to be married without discrimination based on race, ethnicity, nationality and other arbitrary factors, such as animosity towards a minority group.

Third, in Maryland we have an Equal Rights Amendment which the Circuit Court has interpreted to forbid marriage discrimination. The theory essentially is that a state cannot allow a lesbian to marry a man but forbid her to marry a woman. This policy is not only irrational and cruel but unconstitutional.

Now, a court could choose--and courts have chosen--to invalidate marriage discrimination on the basis of any and all of these constitutional principles. We can argue about the particular doctrinal basis for doing it, but marriage discrimination has no rational basis; it is rooted in fear of the unknown, animus, and anxiety about other things, like the relentless sexual images purveyed towards our children by the commercial mass media, very high heterosexual divorce rates and the difficulties that people have keeping families together in times of great economic stress and geographic dislocation.

But it seems to me that the advocates of this amendment want to cement not only a particular religious doctrine or moral judgment into our Constitution but an obsolete view of human sexuality. The supposition seems to be that gay and lesbian Americans, unlike the rest of us, have chosen their sexuality and have chosen wrong. But all of the gathering scientific evidence suggests very strongly that our sexual orientation has a hereditary and biological basis. Think of the gay people you know in your families or friends; now think of the straight people. Do you really think they have freely chosen their sexual orientation?

Doctors don't even know how to keep grown heterosexual men, like our State Comptroller, from ogling young women in public. Do you really think they can turn millions of gay men and women into straight people?

When all of the scientific and anecdotal evidence we have suggests that our sexual orientation is simply part of us, like our hair color, the decision to rope off marriage--an institution that carries hundreds and hundreds of legal and governmental benefits and privileges--from certain groups of people based on their sexual orientation can be described as nothing more than cruel and irrational discrimination.

Our Constitution should not be an historical record of our prejudices and follies but, as much as possible, a covenant reflecting our devotion to expanding liberty and equality for all of our citizens.