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

[bikergeek.livejournal.com]

Indeed. Part of the problem, here, stems from the conflation of the religious concept of "marriage" with the civil concept that bears the same name. "Civil Unions" were a nice attempt at decoupling the two, but it fails. It fails because as long as the word involved is anything but "marriage", there will be people who won't take it seriously when it counts. It's "separate but equal" and that got thrown out in 1954 with _Brown v. Board of Ed._.

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.

[lisa-marli.livejournal.com]

Yes, the fact that the Anti Gays are mealy mouthed Religious Hypocrites who hide their Religious Intent behind "Family Values". And Most People still don't get it! "Because Someone else being Gay makes ME feel Uncomfortable. We can't Allow It."
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.

[jhetley.livejournal.com]

A number of recognized religions, Christian and otherwise, allow and perform same-sex marriages. Therefore, those laws are establishing not just a religion, but a particular sect or sects within a religion.

[radarrider.livejournal.com]

What follows is my interpretation, based on the actual text of the Constitution and its amendments. I am not a constitutional scholar nor other expert. But, then, the Constitution was intended to be simple enough to understand that one wouldn't have to be an expert.

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.

[drdemure.livejournal.com]

Welcome to America, the land of ambiguity. I don't want to discount states' rights. The rights of a state has led to a lot of progress in our country, despite recent backtracking. But federal law supercedes state law when you get down to brass tacks.

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.

[http://users.livejournal.com/crossfire_/]

Another layer of confusion comes from the conflation of religion and morality, or more to the point that religion is the source of morality, and you cannot have morality without religion. This is where you get people squawking "But...but...we have laws forbidding stealing, and that's a religious idea!"

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.

[cipherpunk.livejournal.com]

The First Amendment only applies to the federal government, true; the Fourteenth Amendment forces states to conform to the protections found in the First, Fourth, Fifth, Sixth, Seventh and Eighth Amendments. The process of specifying which Amendments the states must conform to is called incorporation, and so far there is no caselaw as to whether incorporation applies to the Second or Third Amendments.

The Ninth and Tenth Amendments are not subject to incorporation.

Go the hell away and form your own nation.

[stardragonca.livejournal.com]

You know, I don't think there's a single state of the Union that Canada couldn't conquer if it were a sovereign nation...

[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.

[fruitylips.livejournal.com]

I would be willing to grant that Prop 8 might violate the Establishment Clause on these grounds if you're willing to concede that the Civil Rights Act of 1964 suffers from the same problem. (No, I don't actually think it should apply in either case...)

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.

[attutle.livejournal.com]

"the people seriously objecting to allowing gay couples to marry, virtually without exception, do so on religious grounds"

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.