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

[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.