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I keep thinking about this, then keep forgetting to post it.
Almost all of the arguments presented for allowing gay marriage, and against bans on same, focus on it from the angle of discrimination and equal protection under the law. The next thing that happens is you have a bunch of people mincing weasel-words and arguing that it isn't really discrimination, etc, etc, etc, ad nauseam.
It seems to me this argument misses a key point. Barring those who just want to argue about the terminology, the people seriously objecting to allowing gay couples to marry, virtually without exception, do so on religious grounds, and more to the point, specifically on capital-C Christian religious grounds. They say it's an abomination in the sight of their god, or some such verbiage.
So, if the law allows a religion to define what marriage is, and the religious definition of marriage allows hetero couples to marry, because that's what the religion in question says they should do, but bars gay couples from marrying because the religion says that's wrong, then the law is being subjugated to that specific religion. Any legal ban on gay marriage dictated by some religion's principles thus becomes a law respecting an establishment of that religion. Bam, direct Establishment Clause violation, clearly unconstitutional, game over. Open-and-shut case.
... Or am I missing something?
Yes, I know that technically the First Amendment constrains only Congress from passing a law "respecting an extablishment of religion, or prohibiting the free expression thereof". And many States feel they don't have to be bound by the Constitution when they don't feel like it — like California, for example, which "does not consider the Second Amendment to be incorporated into the California State Constitution." I have never had the slightest respect for this argument. It amounts to saying, "Yes, we agreed to abide by the Constitution when we joined the Union, but we had our fingers crossed." You want to be a US state? You obey and respect the Constitution. ALL of it. Period. You want to pick and choose which parts of it apply to you? Maybe you think your state should allow slavery, or deny women the vote? Go the hell away and form your own nation.
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Oh, and the other argument is what I call the "spinach argument". The Spinach Argument goes something like this: "I don't like spinach. And it's a good thing I don't like spinach, because you know, if I liked spinach, I'd have to eat the stuff. And boy, do I hate it." IOW, confusing one's one personal likes and dislikes, including a dislike sufficiently strong as to cause great personal revulsion, for what should be considered moral or immoral by everyone.
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It's just like they hide their color bias behind "Personal Choice of who I want to have as friends. or working with me, or sharing a class room, or sharing a restaurant.
Remember, they passed laws against "Mixed Marriages" too.
It IS Against Everything America stands for, but because it is THEM, they can get away with it.
Until they finally get called on it, then it slowly goes away.
Remember, these are the Same People who gave us Intelligent Design. They are used to hiding their Religious Opinions behind slogans that hide the religion in them.
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Sorry, no.
At risk of making a tautology, liberty is the bedrock of American liberty. That means America stands for their right to be idiots. Including their right to be idiots very loudly, and to participate in elections in which their idiocies are on the ballot.
I don’t trust myself to say “what America stands for.” Why should I trust you to do it?
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So yes, those laws are not so much establishing a religion, or even backing particular denominations, but are establishing governmental policy according to a religious fault-line on which a great many denominations and faiths are undergoing schisms.
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The First Amendment is the only one of the original Bill of Rights that specifically mentions Congress. Based on the plain text, the first limits only Congress. This means that, technically, a state could have an official religion. Fortunately, the constitutions of all, or nearly all states (haven't examined each of them at this time) contain similar language.
Since the Second Amendment, and indeed all the others in the Bill of Rights that in effect say "this is not allowed," do not specify any particular target of the restriction, it applies to everyone everywhere in the US.
The Constitution is the Supreme Law of the Land in the Unites States. California's assertion that the Second Amendment is not incorporated into the California State Constitution is a fallacy. "Incorporation" of the Bill of Rights, and subsequent amendments that enumerate rights of the people, under Section 1 of the Fourteenth Amendment is redundant. Section 1 is not technically necessary, but they put it in there to underscore the point.
Now, to focus on the discussion of gay marriage, there are arguments supporting a state's right to define marriage as being between one man and one woman that are not based at all on any religious belief or argument, and at least some of the points they make are valid. I'm not saying that they are sufficient nor that they are entirely correct, just that they exist.
If legislation defining marriage in that way refers to any religious principle in its text, it would violate the language of the state's constitution prohibiting an establishment of religion (assuming it was present). Whether or not it violated the First Amendment to the US Constitution depends on the interpretation of "Congress shall make no law...." If the legislation makes no such reference, I don't see that it is unconstitutional on those grounds.
If the legislation in question is an amendment to the state constitution, as it is in California, and it refers to religious principles in its text, then you run into the interesting situation where the constitution may be internally contradictory. It seems to me that any such contradiction should be resolved in favor of the previously existing text, and thus the new amendment would be null and void.
Of course, the battle over Proposition 8 is not over. There is now the question of whether it constitutes an amendment or a revision. Although the California State Constitution does not define the difference, existing case law does. If it's a revision, it will be nullified because the requirements for a revision include being passed by the legislature first, and Prop 8 was not so passed.
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Unfortunately, that era died: Justice Harlan drove the stake in its heart with Griswold v. Connecticut, wherein he derived a Constitutional right to privacy not from the language of the Fourth, but from the language of the Fourteenth. (Go ahead, I'll wait while you go off to read the Fourteenth Amendment and have your head explode from the migraine caused by your attempting to discern a right to privacy as existing within it.)
It was a good idea while it lasted, though.
Not even close. The Constitution establishes a federal charter of government. Up until the passage of the Fourteenth Amendment, it had nothing to say about what the charters of state governments must contain. The Fourteenth Amendment has been used to apply many, but not all, of the Bill of Rights to the states: at present, only the Second and Third have not been subjected to the necessary legal scrutiny.
Not according to SCOTUS. SCOTUS has never subscribed to this view of things. At present, California's interpretation is legally sound. Whether it will continue to be in light of Heller, which has some astonishingly strong language indicating SCOTUS would opt to incorporate it should such a lawsuit be brought, is an open question.
I am certainly not trying to dissuade you from reading the Constitution for yourself. However, we have two and a quarter centuries of SCOTUS decisions which clarify the emerging understanding of Constitutional rights, and a great many source texts (the Federalist and Anti-Federalist Papers, to name two greats) that can also give a better understanding of the Framers’ intent.
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I'd think the newer text would apply, otherwise how would amendments ever work? By their very nature, they conflict, and the newer text is always the one that matters.
Obviously it's important for anyone drafting an amendment to use clear language, but we all know the quality of our legislature has gone downhill a bit.
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I predict that it won't be long before gay marriage is a fact of life in this country. I've lived here half a century, and I've seen a lot of change. Most of it, for the good, despite all expectations.
At the time I was born, women were men's slaves. They'd only recently, in the last thirty years, gotten the vote. The south was completely segregated. Black people had to pee in the alley or drink from some "not white" drinking fountain. They couldn't go to "white" libraries.
Women who were raped or abused had to bear the child of that abuse, raise it, and deal with it for the rest of their lives. And, when I was born, we were just seeing the promise of this land we live in for the first time.
Today, women vote, they have the police on their side when they are beaten up or raped. Blacks can walk on the same streets we do, they don't have to step off the curb or say "yes'm" just to go about their business.
And we have a black president. The road to progress is a very long one. And we'll all have to be very patient to see it through.
I've always said that I don't care about anybody else's sex life but my own. And that's still true. I just have to believe that, in spite of how stupid we all seem, most people feel the same way.
I've seen a shitload of progress in my lifetime. I think I'll see a lot more before it's my time in the crematorium.
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From that standpoint I can understand the confusion. It's basically like saying "Some of your wacko religious ideas are okay for laws but that one, THAT one is just too...religious-ish" and I can see how that would be exasperating.
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The Ninth and Tenth Amendments are not subject to incorporation.
Go the hell away and form your own nation.
Re: Go the hell away and form your own nation.
Re: Go the hell away and form your own nation.
Re: Go the hell away and form your own nation.
Re: Go the hell away and form your own nation.
Re: Go the hell away and form your own nation.
Re: Go the hell away and form your own nation.
"The Canadian Forces was formed on February 1, 1968, when the Government of Canada merged the Royal Canadian Navy, Canadian Army, and the Royal Canadian Air Force into a unified structure."
Re: Go the hell away and form your own nation.
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The argument presented does not allow for history. The prohibition against same sex liaisons predates Christianity by a few thousand years. (Yes, I know. But it does illustrate that "Christianity" is hardly as cohesive a group as you portray.)
In every culture and civilization that I am aware of, there is a state supported mechanism for the pairing off of men and women. Sometimes there are multiple paired to a one (usually multiple women to a man), but there is always the other sex involved. Even in cultures where same sex relationships were common and accepted, the word used to describe the pair was different that the word we use to describe marriage.
Since before I was born, religion has been out of the government marriage thing. In order to have a legal marriage, you must present yourself at a government office and buy a license. After a waiting period, you may go to anyone the government has granted permission to perform the ceremony, and get your license marriage ratified. Religious leaders are a subset of those the state grants permission to. It is also worth noting that some religious leaders are willing to perform a marriage ceremony that is not legal, in that there is no license obtained by the couple. We already have your desired separation of religion and state.
The gripping argument is that there is no right to marry. You cannot be granted a personal right that involves another person. My sister has Asperger's, and is not high functioning. What court does she apply to in order to be granted her right to marry? People also do not have the right to act on any impulse that enters their brain, no matter what force or insistence.
Most importantly, in my country, people have a right to disagree with me. They have a right to vote based on what they believe. It doesn't matter if I find their beliefs to be nonsensical, or opposed to what I desire. I have the right to attempt to convince them that my way is better. (In trying to convince them to change their mind, I find it best to not start by saying they are wrong.) In my country, government draws it's power from the consent of the governed. If any branch of the government exceeds what the population desires, they may withdraw their consent. The second amendment supports that action.
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You shouldn't need a "right" to do something that harms no-one. Do you need to have a "right" to sunbathe? Watch the big game on TV? Read a book? Take a vacation? Go run a mile before breakfast?
If we could do only things we have a demonstrable and legally documentable explicitly written right to do, we'd be able to do damned little. But our society doesn't work that way. We have a society in which, by default, anything not explicitly forbidden is permitted. You sound as though you're arguing on the basis of one where anything not explicitly permitted is forbidden.
History seems to disagree with you. There are many nations where it is still the cultural norm today for parents to arrange their children's marriages. In their culture, they have a right to do so.
All that said, you seem to be heading off on a complete tangent from the point I was intending to explore, namely whether prohibition of same-sex marriage motivated by religious proscription would violate the Establishment Clause.
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Given how harmful marriage can be to the people within it, I'm unable to take this complaint seriously. Yes, you shouldn't need a right to do something that doesn't harm anyone: but marriage isn't that. Some marriages work out quite well. Others are terrible ordeals. It cannot be generalized one way or another that marriage is either harmful or harmless.
Yes, and we think their cultures are barbarous for this.
Neither you nor I are cultural relativists. We are fascinated by cultures and adopt bits and pieces from foreign cultures in order to make our own better. That implicitly condemns cultural relativism: if all cultures were of inherently equal worth, we wouldn't need to improve our culture by incorporating the good bits from other cultures.
In the American culture, rights are held personally and individually, and we believe this to be one of America's greatest strengths over other cultures which do not share in our vision. Ergo, there is no right to marry. Marriage involves at least one other person, and your rights cannot expand to encompass theirs as well.
Marriage is an emergent property of society. It should have rights, in a moral sense it does have rights; but in a legal sense, it gets a lot more thorny.
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That is true. We do not have a society where everything not forbidden is endorsed by the government, which is what you are arguing for.
I am trying to show that there is a basis to argue against same sex marriage that has no more to do with religion than any other aspect of history. Your argument attempts to disallow opposition to your goal through judicial fiat, rather than through a discussion of the goal. In effect, saying that anyone that disagrees with me must first prove that they do not disagree for this reason, or they cannot speak on the issue.
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"Marriage," as currently writ in the law, is inherently a Christian concept encompassing one particular religiously-based idea of marriage. I am opposed to all state marriage law, and favor replacing it uniformly with a contract-based civil union approach. My opposition to gay marriage is not rooted in religious proscription, but a desire to avoid religious proscription.
The fact I am also against heterosexual civil marriage does not invalidate the fact that I am opposed to gay civil marriage.
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(I will concede I failed to specify "I've never heard an argument SOLELY against gay marriage that wasn't ultimately based on religion.")
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That said, I have heard some strong arguments against gay marriage which are not grounded in religion.
For instance: consider the fact marriage law is implicitly a guarantee to enter into slavery: signing up for marriage means you agree to everything from alimony to child support to... etc., often times regardless of whether the child is in fact yours. (Women are increasingly being victimized by alimony, so in that respect it's becoming gender neutral; this is not a 'men are oppressed' screed.)
Some heterosexual marriage proponents point to the existence of these draconian laws -- and let's be honest, they are draconian -- as necessary to ensure that children born to the union will have a fair start in life. Therefore, marriage is not to be enshrined in law because it is good, or because it is a heterosexual privilege, but because it is necessary. According to this logic, barren heterosexual couples (vasectomy, tubal ligation, etc.) and elderly heterosexual couples should have their marriages ended: the necessity of them is past, so the state should end its interference in the relationships of private citizens. Marriage should also be excluded to homosexual couples on the same grounds, until-and-unless they adopt a child between the two of them, in which case the necessity argument rears its head again.
This is a nuanced view of marriage which I don't agree with, but which I find logically consistent and rather unobjectionable. It, too, argues that gay marriages should be denied; it only admits for unusual circumstances (which are becoming more common) which provide for exceptions to the rule.
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"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
There is indeed a right for you to do whatever it is that makes you happy, as long as it does not interfere with my own life, liberty, or pursuit of happiness.
Pair bonding is one of the basic things we humans do to make us happy. In fact, a good supportive pair bonding is good for your health, too, prolonging life (another basic and unalienable right).
I do not have any right to marry anyone else -- but I do have the right to ask them to marry me.
I ought to have the right to marry them, too.
That is part of the pursuit of happiness, which I am guaranteed -- not happiness itself, which I am not guaranteed.
It is true that same-sex couples will form pair bonds, no matter if they can make it legal or not. Many of them will have religious commitment ceremonies, even if they can't get a marriage license. But legal, state-sanctioned marriage provides benefits that many people think will increase their happiness. What right do states have to prevent this? How does same-sex marriage interfere with anyone else's life, liberty, or happiness?
And here is where the problem lies. Some people are unhappy with the very idea of same-sex pair bonding. Based on the rhetoric I see and hear from them, that unhappiness is mainly because their religious beliefs tell them that G-d doesn't like it.
They know that this pair bonding occurs anyway, or at least I hope they know! But the state is an agent of the people, and so if the state sanctioned same-sex pair bonding, then they are afraid that G-d will think that they personally sanction it as well. This makes them unhappy.
So, we have the question -- is my right to pursue happiness contradicted by someone else's religious-based unhappiness, given the first amendment right to a separation of church and state?
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My irrational mind screams that if there were any merit at all in same sex marriage, it would be proposed through honest discussion of the issues, not through a fraudulent misrepresentation of what a clearly understood word means.
I also agree with
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Basically, proponents of gay marriage need to stop trying to find a short cut and actually get a legislature or an electorate to vote for this. They likely will someday, but things like this and the 'revision vs. amendment' thing are just distracting from doing it properly. Yes, the process is important.
Like it or not, the Prop 8 guys actually did it right: spend the ground time getting all the needed signatures, get your prop on the ballot and then run a good campaign to get people to support your view.
There's been a push on the left since the 50's to not bother with the democratic process and to take things through the courts. Sometimes this has ended OK, but oft times is just makes the entire thing worse (for instance, abortion). If you can't even get a majority in the most permissive State in the Union and easily the most liberal President(-elect) we've had in the last 40 years is against you, you haven't done near enough of the hard legwork yet.
That was tried in California
The California legislature passed it _twice_...and the Governator vetoed it both times, saying that it was something the courts had to decide.
The CA Supreme Court then did so....and here we are.
Re: That was tried in California
Schwarteneger's vetos were in light of the fact that there was a pending court case over the last time the people of CA said that they don't want gay marriage and the court cases stemming from it.
His position was that since there was already a proposition that was winding its way through the courts, this should be resolved before the legislature stepped in or the people should override themselves with another vote (which gets us back to to prop 8).
To pretend that it was just randomly vetoed is either ignorant or dishonest about the history of this whole thing in California.
Which is the point. The process is important..."whether you like it or not.", to quote a famous philosopher.
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Still -- the attempt WAS made (twice) in the CA Legislature, so it was not entirely a court-based strategy.
To pretend that there was not an attempt to use the legislative process is not entirely correct...or honest.
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There is ample precedent in CA law for an action of the Legislature to render a pending court case moot. Therefore, the vetos did directly lead to this situation.
Re: That was tried in California
The only reason the legislature would have been allowed to pass a bill around this is that there was a stay preventing prop 22 from becoming law while it was in court, so technically, if they hurried, they would not be repealing an initiative.
Under CA law, if the legislature attempts to repeal an initiative, that bill doesn't become law until it is voted on by the people again (who'd just passed prop 22 with 61% of the vote).
This is what Schwarzenegger was referring to when he vetoed the bill.
So far, the only people that have consistently tried to go through the democratic process in California are the anti-(gay marriage) people. This is a bitter pill to swallow, I know, but there it is.
And now we're still at the point where having been passed again by a majority of voters, we're trying to overturn it again via a minor technicality.
In short, it lost. Suck it up and try again next time...and the time after that. Eventually it will either pass or people will be so sick of it that no one will sign the petitions anymore and it'll stop getting on the ballot
(I'd bet on the former around 2014ish...these things are way easier to get through in on off-cycle election).
Re: That was tried in California
I had been lead to believe that the legislative attempts were indeed working thorugh the system.
Apparently, this information information was bad, or incomplete.
[Note: Information sources I'd used included the mainstream media, the No on 8 groups, and the Yes on 8 groups.]
So in answer to the accusation in your first reply - I must claim "ignorance" in the form of insufficient data, but certainly deny deliberate dishonesty.
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Let’s just agree to blame Phil for it all, since he’s the one that started it.
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Yeah, I figure it stems from a deep-seated fear of witnessing or condoning sodomy and being turned into a pillar of salt.
Or some such nonsense. I may have missed some detail.