Tuesday, December 18, 2012

Homosexuality and the Founding Fathers Part 1

     During the 1700s, homosexuality was frowned upon even more so than it is in America today. In fact, you'd be hard pressed to find any debate or document discussing homosexuality, as it was beyond taboo. As such, I will not claim that the founding fathers supported homosexuality; rather, in today's article, I will discuss how the values the founding fathers wrote into the Constitution support homosexual rights.
     Current Supreme Court Justices Breyer and Scalia debated different interpretations of the Constitution on The News Buckit (YouTube Video). In this debate, Scalia supports the originalist interpretation of the Constitution, which is anti-homosexual, while Breyer supports the living Constitution interpretation of the Constitution, which supports homosexual rights.
     Justice Scalia argues that, when interpreting the Constitution, one must take into account what the founding fathers meant or intended when writing the Constitution. In the video he states (paraphrased), "There was no doubt in anyone's mind in the 18th century that the death penalty wasn't cruel or unusual. There was no doubt in anyone's mind in the late 1700s that states could make laws banning abortion." There was also no doubt that slavery was legal and racism was acceptable. If the Constitution had not been amended to end racism and slavery (the Thirteenth, Fifteenth, and Twenty-Fourth Amendments), Justice Scalia's logic would conclude that slavery and racism are perfectly acceptable. Yet today, we view racism and slavery as morally wrong and evil; society has realized its wrongs and moved to fix these wrongs, even before Congress passed the aforementioned amendments. Society is increasingly realizing the wrong it commits against gays and lesbians and is now attempting to fix their wrongdoings. It doesn't matter what the founding fathers thought about homosexuality, society has discovered its own wrongdoings and society must atone for itself; the founding fathers can no longer recognize our cruelities, and the founding fathers can no longer make us repent for our injustices.
     Justice Breyer, on the other hand, provides a much stronger and more reasonable argument of values. He defends the idea that the founding fathers wrote values into the Constitution for society to follow. Justice Breyer contends that the Constitution is based on implicit valued, not explitives; the United States Constitution is short and vague in order to be flexible. The founding fathers realized technology, society, and procedures would change given time, so they wrote a flexible constitution to accommodate such changes. For comparative purposes, the Indian Constitution is 448 articles in 22 parts, 12 schedules and 97 amendments. It is this long because it is highly specifically and must be constantly ammended to accommodate changes in virtually anything.
     The Constitution has been amended to incorporate the value of equality (the subject of Part 2 of this article). Homosexuals are not equal in their rights and treatment; in short, homosexuals are discriminated against. Because the founding fathers wrote a Constitution of values, not explitives, and the Constitution has been amended to incorporate the value of equality (as discussed in Part 2), the Constitution does not support discrimination against homosexuals. And as such, it supports the rights and equality of gays and lesbians.

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