This final clause was inserted by evangelical activist, Charles Colson, according to several reports. It would be the first time that the word “sexual” is inserted into the Constitution of the United States. And what it is apparently designed to do is to reassure people that the second sentence of the amendment does not indeed do what it seems to do, i.e. ban all forms of civil union or domestic partnership. The religious right would, it appears, be willing to allow civil unions between brothers, or an aunt and uncle, or a son and mother, or two college roommates--as long as it was assumed that no sexual activity was implied in the relationship. By this deft move, the amendment would apparently allow gay couples to get civil unions--but only if they pretended that they were not gay couples. Call it the Bert and Ernie amendment.

What it amounts to, however, is a constitutional acceptance of any number of social arrangements short of marriage, as long as those relationships are asexual. . . . It seems, on the face of it, to contradict the second sentence. But it doesn’t. It merely underlines the fact that no sexual activity between two people can be a basis for a civilly recognized relationship except heterosexual marriage. It would make civil unions for straight people void as well, if those straight couples had the temerity to be in love or want to have sex.

But it reveals something else about the real motives of those pushing this amendment. They claim to be defending marriage. But in fact the upshot of their Bert and Ernie provision would be effectively condoning all sorts of marriage-lite alternatives (under the pretense that they’re not sexual) and expanding their reach and number to an extraordinary degree. If the fundamentalist right actually cared about marriage as such, they wouldn’t want to open up any number of alternatives to marriage to heterosexuals. Multiplying “asexual” civil unions is exactly what marriage advocates have feared for years--an easy alternative to marriage that will, in fact, undermine the institution.

But the beauty--indeed the only rationale--of this contraption is that it alone ensures that gay couples get no recognition as gay couples. It’s an attempt to push gay people back into civic nothingness, a place where they are invisible, where their emotional and sexual needs are deemed as worthy as the financial arrangements of two asexual roommates. It’s a desire to recreate the fantasy that gay people do not exist--in the Constitution itself.

In this sense, it’s a perfect product from the religious right. They do indeed want gay people to disappear. They cannot achieve this in reality in a free society. But they can in their own words. Theirs is an America where gay citizens are actually straight citizens in need of either jail or therapy, where gay citizens’ loves are a form of sickness, and their relationships a threat. And they want to assert this image of an ideal 1950s-style society up by rewriting the Constitution to reflect it.

This amendment has therefore very little to do with marriage as such; and everything to do with homosexuality. If the social right wanted to shore up marriage, they could propose an amendment tightening divorce laws. They could unveil any number of proposals for ensuring that children have stable two-family homes, that marriage-lite versions of marriage are prevented or discouraged. But they haven’t. The amendment is simply--and baldly--an attempt to ostracize a minority of Americans for good. It is an attempt to write them out of their own country. It is an attempt to say that the meaning of America is heterosexual and heterosexual only. It is one of the most divisive amendments ever proposed--an attempt to bring the culture war into the fabric of the very founding document, to create division where we need unity, exclusion where we need inclusion, rigidity where we need flexibility. And you only have to read it to see why.

I can think of two instances when groups were specifically written out of the Constitution. The first was by the inclusion of the three-fifths clause, which of designated slaves as non-citizen ciphers. This clause and the conditions it implied were of course eventually overturned by Amendments XIII-XV to the Constitution.

The second example is perhaps more interesting today, concerns the appearance of the word “male” in the XIV amendment. This usage marked the first time what we pointy-heads call gendered speech was included any portion of the Constitution. The word “male” was used to specify that women were exempt the liberalization of voting rights that the amendment was granting all citizens of 21 years of age and older. I repeat: this amendment marked the first time that women were expressly prohibited from voting at the Federal level.

Why did the word “male” appear in Fourteenth Amendment, and not in the original document? Because by the 1860s, challenges by early feminists had begun to crumble the bulwarks of tradition. On the heels of the Seneca Falls Convention of 1845 and follow-up meetings from Maine to Indiana, certain women’s-rights crusaders argued that many women met the standards for voting eligibility (e.g. taxpayers, property-owners), and therefore should be granted the right to vote. I will point out that this group was a tiny minority of the women’s rights movement at the time, and were widely considered to be moonbats.

Nevertheless, the moonbats made an impression. The clash between women and voting laws was a confrontation centuries in the making, ever since Blackstone enshrined the concept of “coverture” in English law, and established that women had no legal existence whatsoever. Of course, circumstance and frontier improvisation softened Blackstone’s hard line in American jurisprudence, and by the late 17th century one can find plenty of cases of women running households, owning property, and otherwise participating in public life in ways that the law officially did not recognize. The pudding hit the fan when public life met voting rights. The first generation of American radical feminists realized that since those women who paid taxes, owned property, etc., met every legal requirement that a voter must meet, and demanded that women’s right to vote be made explicit in state Constitutions. This first effort was not well supported and was easily beaten back.

But the damage was done. Women’s rights advocates had made lawmakers realize that there was no good legal reason why women shouldn’t get the vote, and so they had to go and make one up. Citing women’s inferior intelligence, delicate constitutions, and manifest unfitness for the rough-and-tumble of public life, lawmakers hastened to clarify their State laws, and made sure to enshrine their cause in stone at the Constitutional level. The XIV Amendment, along with securing voting rights for former slaves, ensuring due process, nullifying slaveholder debts, etc. etc., was also a backdoor way to fully and completely bar women from full citizenship. That one single word, “male,” led to more than a half-century of further work to get women recognized as full citizens of the United States.

Why do I bring this up? No reason. Just to show that twice before the Constitution has been used to exclude specific groups from the rights it grants, and each time it was later overturned.DuToitified conservatives aside, I can’t imagine very many people today who think it was a mistake to give women the vote, and the same goes for the demise of slavery. I simply mean to point out that each time the Constitution has been used to exclude specific groups from the full exercise of American citizenship, it has ended up being proven wrong and the exclusion left behind on the losing side of history.

If you want still more, I wrote a paper on this subject a few years ago that I will forward upon request. As if.