The Green Papers
The Green Papers

Two events highlight a still somewhat taboo subject

by Richard E. Berg-Andersson Staff
Fri 13 Aug 2004

There were two separate and coincidental, yet strangely intertwining, events that occurred on opposite coasts of the Nation on Thursday 12 August, both involving the concept of intimate same-sex relationships.

The first was the unanimous ruling by the California Supreme Court that marriage licenses issued by some local authorities in that State to same-sex couples (in a kind of Civil Disobedience response to the decision by the Massachusetts Supreme Judicial Court that that State's ban on same-sex Marriage was unconstitutional under State law) were null and void, as California State law- at least as of yet- does not legally permit same. The second was the surprising announcement by New Jersey Governor James E. McGreevey that he would be resigning his office before the end of this year, an announcement which included the public revelation that he was, in fact, a "gay American".

I feel compelled to comment on both these events- primarily because I have already once addressed the issue of the legal status of same-sex relationships (and the potential political ramifications of the debate over same) in an earlier Commentary on this website entitled 'DIVISIONS OVER UNIONS'; but I also would like to comment on Governor McGreevey's statement because he happens to be my State's Chief Executive.

I'll begin by addressing the California decision, which was altogether right and proper. I would hope that- regardless of where one might stand on the issue of same-sex marriage (or even so-called civil unions)- people on all sides of the issue can agree that, whichever viewpoint might ultimately prevail, such viewpoint only prevail through the normal political and constitutional processes. I would hope that we would all agree that you simply can't have local authorities applying their own "constitutional spin" on State law, else we have lack of a uniform legal code throughout a State where not also, at worst, legal chaos if not outright anarchy!

In the Federal System that is the United States of America, the constituent State of this Federal Union is the unitary government- by which I mean that all levels of governance beneath this unitary level have no inherent sovereignty (the State is thereby considered the primary governmental unit- hence the term "unitary") but, instead, exist only for the efficacious execution of, in this case, State functions. It might well be true that constitutional and/or statutory procedures prevent a State from arbitrarily doing away with sub-State administrative units and civil divisions (for example, it is the usual case that a municipality, once incorporated, cannot be disincorporated without the consent of a majority of its voting citizenry); it is also true that unitary sovereignty here in America does not really, in and of itself, belong to the State as an institution but, rather, to the People of that State (that is, the sovereign State is merely the representative legal instrument of the Political Will of its People).

Nevertheless, sub-State units such as a County or a Township are intrinsically creatures of the sovereign State and primarily exist to better facilitate State governance (for instance, a principal function of State government in the United States is Education: to this end, the State authorizes the formation of School Districts at the local level to better carry out this function-- but it, nonetheless, remains- in its essence- a State function, subject to State oversight; another example: local law enforcement enforces State laws as much, if not more, than they might enforce local ordinances and by-laws [city Homicide detectives, after all, are charged with investigating one of the most heinous violations of State penal codes]).

Ever since the Norman Conquest of England, there has existed the concept of "Common Law" within what eventually became the Anglo-American legal system: one set of laws "common" throughout a sovereign jurisdiction. In medieval into early modern England becoming Great Britain becoming the United Kingdom and British Empire becoming Commonwealth of Nations, this "Common Law" has been part and parcel of the Sovereign as the Fountainhead of Temporal Justice. Wheresoever the English (later, British) King (or ruling Queen) was acknowledged as Sovereign, the Crown could enforce Common Law. Eventually, this Common Law- originally solely the bailiwick of the King's own judges- could also be codified and altered by Statute of Parliament.

The American Revolution divorced the one-time British Colonies become States of the new United States of America from the Crown but it could not divorce Common Law from the concept of Sovereignty these States had inherited from that Crown. Sovereignty in America would, from now on, rest with the People, rather than with the King, but there was still a need to know that, for instance, the crime of Burglary in, say, Suffolk County, NY was not going to be defined and prosecuted differently than it was in, say, Albany County, NY at the same time. The courts of the State would, therefore, be able to enforce one law "common" to the entire State, subject to statutes passed by the State legislature so long as these statutes were not at all in conflict with that State's own written Constitution.

The decision of the California Supreme Court is certainly well within the history and theory of just such a "Common Law" legislatively enacted and judicially applied throughout the State of California.

Now, before I address the surprising resignation announcement by my own State's Governor, I want to make it clear that I care little about a politician's most personal- by which I here specifically mean sexual- behavior, whether I happen to be a supporter of that particular politician or no. If others among my fellow citizens wish to care- even deeply- about such things, they are certainly free to do so and I most certainly respect their right to do so-- after all, to quote this web site's own Mission Statement, "[t]hat's Freedom and that's America"! But please know that I generally don't happen to care.

'The Green Papers' was not in existence at the time of the Impeachment Crisis of 1998 into early 1999, so I never got to opine- in a Commentary on this website such as this very piece- about what I thought about then-President Bill Clinton and any intimacies he shared with one-time White House intern Monica Lewinsky. Was President Clinton's involvement with Ms. Lewinsky unseemly? Yes. But was it- in and of itself- a violation of President Clinton's oath of office? No!

For it was, by all accounts, consensual and Ms. Lewinsky, although there were those who tried their utmost to portray Clinton's behavior as the moral equivalent of taking advantage of a child, Ms. Lewinsky was- in fact- legally an adult and, therefore, had the right to consent to whatever she might have wished to consent to. If President Clinton might have done anything to- or with- her that she really didn't want him to do, there is no credible evidence that she told him not to do so and she has to bear fullest responsibility for that.

Rights imply Responsibility. Therefore, if you wish to be free to exercise a right, you best be prepared to accept the ramifications of so exercising it!

When in doubt, DON'T... if you DO anyway, don't get caught!! ;-)

Sexuality is one of the most personal aspects- if not the most personal aspect- of Humanity. Sex- and its human complement, Love- is one of those things which clearly defines a person who has achieved adulthood as, indeed, human-- as well as adult. Therefore, I don't at all believe that a person who has become a public figure- whether athlete, movie star or politician- has at all given up the right to so be human simply by virtue of also, at the same time, being in the public eye. It might be much more difficult for the celebrity in today's all-seeing society to so easily maintain his or her privacy, but the fact remains that he or she retains the same constitutional rights- including that of Privacy- anyone reading this piece in the relative anonymity of their own computer's access to cyberspace might themselves have. A public figure, thus, has the same rights and privileges relating to his or her own sexuality that any other consenting adult has.

Sex and Politics only become a problem when the resultant mixture involves compromising the oath of office of the politician. If Monica Lewinsky had been, say, a lobbyist for a group of insurance companies and President Clinton was, say, shaping Federal policy on health care to the benefit of said insurance companies in exchange for her sexual favors, then their affair would have risen to the level of an impeachable offense. However, as Ms. Lewinsky appears to never have had any such- or similar- ties, the only person who had- and, indeed, yet retains- the authority to "impeach" Bill Clinton ("impeach" here in the sense of a lawyer challenging a witness) was the woman who happens today to be the junior Senator from the State of New York: it is their marriage, their relationship, and it is solely Bill an' Hil's to have worked- and, should it still be necessary, continue to work- out!

Where the Clinton/Lewinsky affair did rise to the level of an impeachable offense was when the then-President lied under oath before a Grand Jury in a Federal case in which his sexual behavior was at issue. A President committing Perjury- in a Federal court proceeding, no less!- is clearly a potential undermining of the Federal System he, as President, so solemnly swore to "preserve, protect and defend"; Perjury, a crime, thus rises- with such presidential behavior- to the level of a "high crime" that is the very definition- found in the text of the U.S. Constitution itself- of that which is impeachable by the U.S. House of Representatives, subjecting said President to potential conviction by the U.S. Senate and concomitant removal from office. As things turned out, President Clinton was "indicted" (which is that of which Impeachment is the equivalent) and subsequently "tried by jury" (in this case, the "jury" being the Senators of the 106th Congress), with said "jury" ultimately voting to acquit.

So the case was adjudicated and then became the stuff of History. Since it is History, I do not here bring up this whole now more than half-decade old controversy in order to pour ever more salt into old wounds, whether of those pro-Clinton or those anti-Clinton (though I feel much more comfortable discussing it at this stage in part because former President Clinton's memoirs are now out in print and he himself has discussed these same events in interviews done as part of publicity for his book), but merely to illustrate- utilizing a most well known example- how there is a big difference between a public official violating his or her private vows to a spouse or his/her own moral code and that same public official violating his or her public vows to the People he or she might serve. I myself recognize and acknowledge that key difference.

The only real issue then, as far as Jim McGreevey's own sexual behavior is concerned, is whether or not any such behavior might have actually compromised his oath of office as Governor of New Jersey.

On one level, the Governor's resignation announcement is a public illustration of the private anguish and personal anxiety keeping one's homosexuality hidden from view causes one who feels compelled to do so. Many Americans, of course, feel that such painful feeling is well deserved: their argument would be that, as homosexuality is a wrong- where not also sinful- in their eyes, the punishment here fits the "crime".

Those who, however, feel otherwise tend also to feel that being forced to keep the world from seeing one as one truly might be is nothing less than an unfair imprisonment within one's own persona imposed by outsiders. Simply think about a Jim McGreevey, living such a lie for the better part of his more than four and a half decades on this planet, nearly one-third of which was spent in the brightest glare of politics, and knowing that his political future would be most difficult were the truth ever to become public.

But there is a far darker undertone to Governor McGreevey's public "confession", as it were-- for there is absolutely no doubt that we would now not even know about the New Jersey Chief Executive's sexual orientation were it not for some real chance of its soon being publicly revealed through some other channel. Reports are that a former State employee- a male- is claiming sexual harassment by the Governor and it is obvious that any potential civil legal action stemming from this claim would have forced McGreevey to publicly acknowledge his homosexuality, later if not sooner.

In essence, then, what McGreevey is confessing to is really not inherently different from that which, say, former Kentucky Governor Paul Patton or outgoing West Virginia Governor Robert Wise had confessed to when they each were forced to acknowledge inappropriate, altogether illicit, heterosexual intimate relationships. It would, therefore, be most wrong to attempt to make Jim McGreevey into some kind of suffering martyr simply because his inappropriate intimacy involved someone of the same gender as himself.

Yet both Governors Patton and Wise were both able to finish out their terms of office- indeed, neither resigned. Hence Governor McGreevey's resignation, at least in some ways, makes no real logical sense: he claims to be resigning to keep the Governorship of the Garden State free of "rumor, false allegation and threats of disclosure"-- but didn't his "confession" (the portion of his statement that came before he formally announced he was resigning come 15 November) itself mitigate this? How can there possibly be a "threat of disclosure" of that which has already been publicly disclosed? But it does make political sense and nobody can accuse the world of Politics of necessarily being logical.

I am certain that, in the days and weeks ahead, we will learn much more about what actually precipitated Governor McGreevey's resignation and I am fully prepared to learn that there was some sort of compromise of his Gubernatorial oath involved (a government job for his lover, perhaps?-- or some other similar political favor?). Why else then resign if you yourself have already let the proverbial "cat out of the bag"?

So, before people turn this rather shocking announcement into an illustration of some kind of Gay and Lesbian Empowerment, let's not at all forget that this was, above all, principally a political statement-- a pre-emptive strike, as it were, before the excrement could really hit the air conditioner! Bottom line: the New Jersey Governor was mainly seeking to "save his buns" where he was not- at the same time- also trying to save some face and come to better terms with the face that stares back at him when he looks into a mirror.

Modified .