Like many courts nationwide, the California Supreme Court legislated from the bench on Thursday. In a 4-3 ruling, the Republican-dominated court (yes, a Republican-dominated court making law) struck down state laws against same-sex marriage, saying that civil unions which are allowed in California do not provide enough rights and benefits of marriage to same-sex partnerships. The ruling is reminiscent of the U.S. Supreme Court’s 1954 law-making decision in Brown v. Board of Education of Topeka, Kansas, where the Court ruled that separate but equal schools for the nation’s black children were a nice attempt at equal opportunity, but not quite nice enough.
Of course, before the ink was even dry on the California high court’s decision, social conservative groups were planning to petition the U.S. Supreme Court to hear the case and propose a constitutional amendment to the California State Constitution outlawing same-sex marriages. Seems to me that instead of questioning whether same-sex couples should be allowed to marry, the real question we should be asking is why the government is involved in the institution of marriage in the first place.
Social conservatives would argue that government needs to be in the business of protecting the sanctity of marriage between a man and a woman because society needs protection from deviant behavior. In particular, children must be shielded from immoral conduct, lest the moral fabric of our society deteriorate and American Civilization as we know it crumble and fall. They also would argue that marriage has always been between a man and a woman. Look at the Bible for guidance on this one. On those occasions where same-sex relationships took place, God sent his wrath not only upon the evil doers, but the whole society (see Sodom and Gomorrah) for letting it happen. This is proof to many social conservatives that God abhors homosexuality and will destroy the society that sanctions it.
Article comments
— go to most recent comments1 - Baritone
Kenn,
Of course, I agree with you as regards any kind of laws which narrowly define the nature of marriage and deny same sex couples the priviledges afforded hetero couples.
I hadn't really thought about your notion regarding a private marriage contract. It could have merit. I'll have to think on that one.
A bunch of us have bashed this issue about in two recent posts, pretty much to no avail. No body has switched teams as it were as near as I can tell.
It seems the strongest argument against same sex unions and homosexuality in general presented here, one with which I don't agree, is that gays and lesbians MUST have something wrong with them, that they are somehow out of balance which counters or obviates their particular plumbing attributes. Further, the thought apparently is that encouraging or legitimizing this behaviour will have dire evolutionary consequences for humanity down the road.
I think that's hogwash, but at least it's more thoughtful than the typical hissey fit that most social conservatives have over this matter.
B-tone
2 - Baronius
You forget the most conservative of all "conservative" arguments: the argument against change. It's not a debate about what marriage should be; it's a debate about whether we change what marriage is. In such cases, the conservative bias will always be against change.
3 - Baritone
I agree B, change often comes hard (no puns intended.) However, if there was ever an era of change, we are living in it. Change happens, often whether we're prepared for it or not.
That being said, it will no doubt be a long, difficult battle. I've seen a few news articles exclaiming how this court decision is having or will have the effect of re-energizing the efforts toward enacting constitutional ammendments against same sex marriage throughout the country, state by state, and, of course, on a national level. That may be. Hopefully, whoever lands in the WH will not be so friendly toward that effort. I don't know where McCain stands on this issue. Clearly, neither Clinton nor Obama would support any such constitutional ammendment. Also, it is likely that Congress will have a more liberal bent come next January.
But this is a fight that will go on for years, perhaps decades. If this issue hasn't been settled say, by 2050, I probably won't give a shit, because I'll probably be dead.
B-tone
4 - Baronius
If there ever was a time for a change, it was 1789, and 1848, and 1917. And every time that sweeping changes come along, things have gone horribly awry.
I'm not saying that this is the only argument against gay marriage, or the best one. If you're going to list conservative arguments though, you have to include reluctance to upset the applecart. The family has long been the central unit of society. The family is under enormous pressures today, and it's having consequences. The decline of the traditional American family tracks to increases in poverty and crime. This is the worst time to be redefining the family.
The family is an aspiration. None of us have perfect families, and there have always been different family forms, but we all agreed on what was ideal. You can't change that without repercussions.
5 - Baronius
Ack. I got so eloquent that I forgot to make my point. The point is: if we were starting over, you probably could make a good argument for keeping marriage separate from government. But we're not starting over. Civil marriage is a fact. We can only accept it or change it.
6 - Baritone
I don't really have a horse in the private contract marriage race.
But, as I've stated pretty much ad nauseam, legislating to limit or remove the rights of individual citizens is certainly not forward thinking. I see no danger in just leaving individuals to their own proclivities. Arguments against same sex unions, specifically marriages are largely strawmen.
B-tone
7 - Baronius
You missed my point. It's not "limiting" or "removing". The limit is already there. You need to articulate a reason to remove the limit.
And from a conservative perspective, I can live without being labelled "forward thinking".
8 - Dr Dreadful
The limit is already there. You need to articulate a reason to remove the limit.
The limit is only there because of the Defense of Marriage Act and its assorted bastard offspring. How about invalidating it and the various state constitutional amendments and reverting to the way the law was before?
That 'conservative' enough for you?
9 - Baronius
The limit has been part of western law from pretty well the beginning.
10 - Dr Dreadful
Not really. The nature of marriage has just been assumed.
Otherwise, why would our elected representatives have felt the necessity to enact anti-gay marriage legislation?
11 - Baritone
Baronius,
Do you really believe that our society is in such a delicate state that it can't withstand the legalization of same sex marriage? Is it beyond our finer sensibilities to imagine that a couple of guys down the street might be performing legally sanctioned anal sex or mutual fallatio? Oh the horror!
Change is what this day and age is all about. Those who want to live in another time should go cast their lot with the Amish, or better yet, Al Qaida. Al Qaida is all about tradition.
B-tone
12 - Irene Wagner
Kenn: good article. If by In a free society, if parents are homophobic, they could move to shelter their children from homosexual behavior just like they could move to protect their kids from inferior schools or paroled child molesters.
you mean that they could move to States where the public schools had a very high ratio of hours spent on math and reading to hours spent reading emilee has two mommies (and QUIT CALLING ME HOMOPHOBIC!!) I think it would be fair for "more forward thinking" folks to vote for a curriculum with a lower such ratio in their own states, providing public schools throughout the land were freed from the shackles of the federal Department of Education.
Repeal all the laws if the people say its time to repeal them. Starting over is a fine idea. Allow time for civil discourse suitable for the type of population that lives in each state, truth will prevail, even the reddest and bluest of states, on their own time-tables will do what the population believes is fair and right.
***sending subliminal messages to Baronitonius***))))))little....feet...pins.))))))
13 - Jet in Columbus
Funny, if you agree-it's a solid decision handed down. If you disagree it legislating from the bench.
Can you say hypocritical
I knew you could.
14 - Ruvy
Private marriages would eliminate all of the political issues surrounding same-sex marriage - issues like whether other states must honor a same-sex marriage granted in another state (full faith and credit clause of the Constitution), divorce rights, dividing assets, child custody, and next of kin status. All of these issues could be addressed in the marriage contract.
........
As to the Biblical argument against same-sex marriages, most Americans do not interpret the Bible literally.
Guess what, Kenn.
The basis of Jewish marriage (the Torah is a Law Book for my people) is the marriage contract!
Put simply, you reflect what I wrote long ago on another post dealing with a similar matter.
I suggested that the several states adopt a "Uniform Civil Union Act" with standard provisions allowing for individuals to live together. All the benefits, about 1,100 or so of living together would be part of the Civil Union, which could be between two consenting adults with two adult witnesses. The Civil Union would be a contract, and the contract could be dissolved upon the agreement of the contracting parties, with courts arbitrating issues of property or responsibility for children of the Union, should there be any. Each state legislature would then adopt the Act, much as they have adopted the Uniform Commercial Code.
"Marriage" would be purely a religious matter, under the supervision of pastors, rabbis qadis, or whomever, or under nobody at all. There would be no civil marriage - that would be the Civil Union.
Under such a law, any couple could form a civil union and enjoy all the benefits now conferred on a married couple.
15 - Baritone
Ruvy's suggestion seems wholly reasonable and acceptable to me.
I do believe that some, perhaps most gays would still feel that such a set up would be lacking.
However, and even as I am not a churchy kind of guy, I do believe that each religious organization should have the right to bestow the sacrament of marraige as is befitting of its particular teachings. These organizations should not be compelled to perform marriage rights to those they feel do not reflect their standards. It's difficult for me to imagine why anyone would want to have their union sanctified by an organization that disapproves of them and their union.
But, of course, many gays are also deeply religious and have grown up in one church, synagogue or temple. It is a part of their roots. On that level it all becomes very complicated because of entanglements with personal history, family, traditions, emotions and lifestyle which don't always mesh.
Just as I believe it should not be part of the legal purvue to enact definitions of marriage and limitations on who can and cannot be "married," I also feel that what marriage rites a particular religious organization will or won't perform should not be a legal matter either. Again, a religious organization should not be compelled by law to sanction and/or perform marriage rites to and for unions of which it does not approve. It is, rather, the burden of those who disagree to plow into the bowels of their particular organization and attempt to change those policies from within.
B-tone
16 - Ruvy
Thanks for the kind words, B-tone.
Just in case you didn't know, there is a commenter and occasional author here, Silas Kain, who is gay, and who is ordained to perform marriages in the Commonwealth of Massachusetts - so he said, anyway, a long time ago.
Dig it, B-tone. A rabbi could, under this arrangement, seek a license from a state or commonwealth in the union to perform a civil union. But the terms I cited, a contract, two consenting adults (a man and a woman!) and two witnesses capable of testifying in a court of law, are the de minimis requirements of a Jewish marriage. Well almost. Under Jewish law the man gives the bride a ring and recites a legal formula and gives the bride the contract, which is the wife's property for as long as they are married.
No rabbi is required.
There is no homosexual marriage under Jewish law, but you can always count on some dipshit "reform" rabbi to take it upon himself to perform one. They honor the Torah as much as I would honor a cockroach.
17 - Matthew T. Sussman
"Jewish marriage. Well almost."
Jewish-ish
18 - Cindy D
Ruvy's suggestion seems wholly reasonable and acceptable to me.
I do believe that some, perhaps most gays would still feel that such a set up would be lacking.
I agree, I like Ruvy's suggestion. I think many heterosexuals would be upset by it too.
Some one once told me something that made sense--when deciding in favor of one "side" or another, if no one is "completely" happy, then you know you've reached a fair decision.
19 - Baritone
I think problems lie in areas that Baronius and I among others have alluded to. It's a convoluted mish-mash of traditions, emotions, myths and beliefs that prevent any solution from being either satisfactory or even possible. As little as I like it, Baronius may be correct. Significant change in this area sadly, may be long in coming.
B-tone
20 - Baronius
Irene - I'm not sure what the subliminal message means. Not that I'm shooting the subliminal messenger or anything.
Jet - I argued in the "Can McCain Dance" thread that there are objective criteria for what it means to legislate from the bench, whether you agree with the decision or not. Dan, on a different thread, argues that this particular decision was sloppy (although I don't think he considers it judicial activism). The author of this piece seems to consider the decision a step in the right direction AND judicial activism. So it's not as clear-cut as you make it sound.
21 - Ruvy
Cindy, B-tone,
Thank you both....
I did used to be a lobbyist once, and used to root around law-books trying to solve problems.
22 - wildnfree
Ruvy's suggestion does make sense, I would still prefer for the government to get out out of the business of marriage altogether. I posted my arguments on another thread (Gay Marriage Becomes Law...) and won't repeat them here.
23 - Dan Miller
Strangely -- and hopefully -- there seems to be very little substantive disagreement on this thread with the thesis that Government should keep its nose out of marriage between consenting adults. For most religious people, marriage is a religious affair. Since membership in a church is voluntary, it should be possible for them to be guided by religious doctrine or not, as they wish -- with whatever consequences their church deems appropriate, including excommunication but excluding the imposition of sanctions of a criminal nature such as stoning. For others, it is a civil affair, a contract in other words as Ruvy suggests. I agree.
Not to be too obstructionist, however, Government has its nose in marriage to such an extent that its extraction would be extremely difficult.
The article does not address the question of bigamy, a form of marriage which is generally proscribed under criminal law; I don't know why bigamy should be a crime, but making it otherwise would be very difficult, and there is no significant public outcry for it to be made lawful. Still, it is a form of marriage or civil contract, recognized by various religions and cultures. Even were bigamy made lawful, how would the various ancillary benefits and detriments be treated? Joint tax returns, claiming two or more spouses as dependents, disposition of property on the intestate death of one spouse, etc? In addition, the Federal Family and Medical Leave Act mandates the granting of various benefits to employees based on the status of their spouses. For example, unpaid male maternity leave is mandated for eligible employees. Should an employer be required to grant such leave to a man each time one of his half dozen wives has a baby? How about mandated health insurance coverage for the spouse of an employee? Should it be mandated for an employee's half dozen spouses?
Although these questions may seem silly, silly questions frequently receive serious but absurd answers; when those answers attain the force of law, there can be serious problems.
Dan
24 - Christopher Rose
So long as marriage has legal implications, and it seems hard to imagine how it could not given the legal, property and parental rights that are involved in most marriages, it seems to me that it is entirely right that the government should be involved.
Marriage as a religious only concept could only work if it was a purely symbolic act that had no legal implications, which seems to defeat the point of marriage in the first place.
25 - Dan Miller
Christopher Rose,
You contend that So long as marriage has legal implications. . . it is entirely right that the government should be involved.
Isn't that rather circular? Governments and only governments manage legal implications. Obviously, therefore, to the extent that there are legal implications, it is not only right that there be governmental involvement, there is no way around it.
The real question is whether there should actually be legal implications and, if so, what they should be. In my view, there should be as few as possible and they should be unrelated to the sex or number of the consenting adults who desire to marry.
You also say that religious marriage as a purely symbolic act would defeat the point of marriage in the first place. If by "symbolic" you mean having only religious, and therefore no, significance, that has not been my experience with religious people (of whom I hasten to note that I am not one). They seem to think that marriage is very important, and some even try to maintain an otherwise failed marriage lest they offend church doctrine and lose favor with their co-religionists. Even for me, marriage is a serious matter, with commitment on both sides, the dissolution of which is to be avoided because it is painful in ways transcending the financial.
Sure, there are governmental and government mandated benefits and detriments associated with marriage. From my perspective, they tend to be ill advised and should be eliminated to the greatest extent feasible.
Dan