A different point of view

[unixronin]

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.

Comments

[ithildae.livejournal.com]

My first thought is that this is setup just like a straw man argument. It is a variation on the conversation I have with lefthand that all humanities' suffering is caused by religion, and all our enlightenment and progress occur because we have been able to throw off the chains of religion.

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.

[unixronin.livejournal.com]

The argument presented does not allow for history. The prohibition against same sex liaisons predates Christianity by a few thousand years.

The existence of prohibitions against same-sex liaisons before Christianity does not mean that Christianity does not influence prohibitions against same-sex liaisons, nor does it mean that all societies (Christian or otherwise) have or had such prohibitions.

The gripping argument is that there is no right to marry.

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.

You cannot be granted a personal right that involves another person.

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.

[cipherpunk.livejournal.com]

You shouldn't need a "right" to do something that harms no-one.

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.

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.

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.

[ithildae.livejournal.com]

We have a society in which, by default, anything not explicitly forbidden is permitted.

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.

...you seem to be heading off on a complete tangent from the point I was intending to explore...

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.

[unixronin.livejournal.com]

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.

No, that's not what I'm saying, or at least what I'm attempting to say. My basic point was that I have never heard a coherent argument against gay marriage based upon anything other than religious proscription, and that the religious-proscription argument appeared to me to be directly invalidated by the Establishment Clause. I have never yet heard anyone — including you — elucidate a coherent argument against gay marriage that was not ultimately based, as far as I can tell, upon religious proscription.

[ithildae.livejournal.com]

It is possible to assume any motive for any action or position.

[cipherpunk.livejournal.com]

You haven't heard my argument against gay marriage, then.

"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.

[unixronin.livejournal.com]

I can definitely get behind the idea of getting churches out of it altogether and going to something contract-based. But see, it appears to me you're not saying "Oh my god, the world will end if we let Teh Gheys have the same benefits from living together as anyone else", you're saying "Why should anyone have to put up with having all kinds of religious strings attached to this if they don't want to?" Which, I think you have to concede, is an entirely different argument. :)


(I will concede I failed to specify "I've never heard an argument SOLELY against gay marriage that wasn't ultimately based on religion.")

[cipherpunk.livejournal.com]

I do grant that my argument is not exclusively in opposition to gay marriage. (However, it does present certain philosophical difficulties: should I support California's Proposition 8? Which is more important: equality under the law, even bad law, or taking a stand against the further entrenchment of marriage in civil society?)

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.

[unixronin.livejournal.com]

OK, now that argument makes a certain amount of sense. However, it makes a better argument for not compelling marriage between those unable to reproduce by their own means than it does for not permitting it. In particular, the child support argument is moot unless those biologically incapable of reproducing are also prohibited from adopting.

[beckyzoole.livejournal.com]

The gripping argument is that there is no right to marry.

"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?

[ithildae.livejournal.com]

There is a significant difference between being allowed to do something, and having the government support something. Any two (or more) people are allowed to pursue happiness as best suits their inclination (provided it does not violate laws.) What is being asked for is a change in what the government endorses. I cry foul (or fraud) when the attempt is by redefining the language of the law, that is perfectly clear to all those governed, and then claiming it meant to do that all the time. That act alone is the sole factor in my position on the issue (such as it is.)

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 bradhicks in that this legal fight now is folly. Same sex relationships have been steadily and rapidly gaining rights for the last thirty years. Same sex marriages are an inevitable endpoint in that progression. Ten years, perhaps fifteen at the outside, and it would be done. What is the driving need to force the issue now? The majority in very liberal states like California oppose the idea. Do you want to fight, or do you want to win? If you are trying to "stick it" to the opposition, realize that you are in the minority, and it will not end well.

[unixronin.livejournal.com]

What is being asked for is a change in what the government endorses.

I disagree. The way I see it, what is being asked for is not a change in what the government "endorses", it is a change in what the government arbitrarily denies.

[ithildae.livejournal.com]

We agree that it is a change. The change in definition of marriage is unique in the recorded history of all civilizations and cultures that I am aware of. That includes non-Christian ones. I claim that it should be discussed and justified before the legislative and executive branches of government, not the courts. In short, make the case to the people.