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 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.