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

[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.