You might be surprised to find out that I'm not very concerned about this. Proposition 8 didn't interest me much when it was written, and it's removal today doesn't get me out of my chair. It just doesn't mean much to me. I'll explain.
As I've said in the past, I don't like the idea of the federal government regulating marriage. If Uncle Sam can tell homosexuals not to get married then he can tell me not to get married with that same power. I'm not a fan of giving the government powers it can use against me, so I don't get excited about banning gay marriage - that could come back to bite me.
Furthermore, to hit on a common talking point, I don't think gay marriages will make me feel like my marriage has been devalued. That's already been done by high divorce rates, abusive/cheating spouses, and people who treat marriage like a form of dating that some people only get into so they can profit from the divorce. I'd like to see the church deal with these problems from its own members before criticizing anyone outside of the church.Finally, I don't think there will be cataclysmic reactions to this. Since I'm not Pat Robertson I don't believe God will curse our country for this - if He cursed every country that accepted homosexuality things would have turned out very different in history for a lot of countries. We are each expected to take care of our own personal devotion; we are judged individually by what is in our hearts and not corporately by federal laws.
This doesn't mean that I am happy about the judge's ruling, today, but I just really can't get that worked up about it. (I realize this puts me in the minority, because most of the people I know are either celebrating or plotting revenge.)
But I'll tell you something that does make me angry. Very angry, in fact. TheWrap.com wrote an article about this federal ruling, and the very first comment on the story was written by a hateful person who insulted gays and called them all sodomizers. His screen name? HeDied4u. That's right, the very first comment on this story managed to make Christians look hateful and ignorant. Being hateful to homosexuals is something that Jesus would not do, and yet some of my fellow believers have occupied this sinister outpost. I want to hang my head in shame because I have to be associated with that sort of thing. This is why I can't tell someone I'm a Christian without being called a gaybasher or a hater even though I'm a very accepting person.Christians acting hateful and misrepresenting Christ is a far bigger problem than anything California's courthouse can bring.
Before we take any action on gay marriage, let's clean up our own house. Stop hating. I can't make it any more simple than that. Love your neighbor as yourself. While this is being perfected we should not look too far outside of ourselves.
39 comments:
Intriguing post as always, Adam. Thank you.
I have too many thoughts so I will go with just these two and hope they are appropriate and helpful. First, you are quite right that the devaluation of marriage by the church within the church is a huge problem, and one on which Christians should focus.
Second, you are incorrect if you mean to construe Prop 8 supporters as promoting a federal power to define marriage as a man and a woman. The last such attempt was the federal marriage amendment (in '04, I believe). Prop 8 supporters are only defending the STATE's right to define marriage. Right now the judge who strikes down Prop 8 is the one pushing for a federal power to define marriage.
Mark B
You are correct, Mark. I know that Prop. 8 has nothing to do with federal powers banning marriage of any kind, but I said that stuff because it sums up my general view about gay marriage and the law. But I realize that it might be out of place and seem confusing in the context of this discussion.
I'll probably write more on this to clarify that sort of thing.
The ability to marry has been construed as a fundamental right under our Constitution. The most important line from yesterday's opinion is this: "That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” West Virginia State Board of Education v Barnette, 319 US 624, 638 (1943)."
Prop. 8 will never hold up when it gets to the Supreme Court, and then there will be the Supreme Court's recognition that our Constitution does not allow discrimination on the basis of gender for fundamental rights.
Thanks, Adam. But you leave me curious, perhaps confused. Since you don't want the government to have the power to define marriage, don't you find the overturning of Prop 8 by the federal judiciary somewhat . . . problematic?
Mark B.
Justin,
Perhaps you could explain why you believe that a man-man or woman-woman relationship counts as marriage. How do you define marriage?
Mark B.
Another good question, Mark. I am surprised that many people who I expected would support this judges ruling are actually against it for that very reason. However, Justin's point is also good - the voice of the people cannot be sufficient to take away someone's rights. It's a pretty tough issue.
The bottom line is, for me, that I don't really care about the issue, so none of it interests me enough to get worked up over it.
Mark-
Marriage as we are talking about here is the legal recognition of a couple's relationship, which confers upon it legal status and benefits, such as community property, rights, duties, and obligations for each spouse, as well as things like tax benefits, insurance coverage, and child-rearing rights. This decision simply states that the government has no rational basis for limiting the legal implications of marriage solely on the basis of gender. The judge perhaps said it better than I could when he said " The evidence shows that Proposition 8 does nothing other than eliminate the right of same-sex couples to marry in California. See FF 57, 62. Proposition 8 is not rationally related to an interest in protecting the rights of those opposed to same-sex couples because, as a matter of law, Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex."
ADAM:
Adam, I respect and somewhat envy your nonchalance.
However, I object, Sir! Justin's point is not a good one, at least not on its own. This is not a simple civil rights issue; a civil rights issue it may be, but simple it is not.
For it can only be a civil rights issue if it is the case that same-sex marriage either does or could exist. This premise must not be glossed over. If someone believes it, let him say so explicitly, clearly. Let him defend it with an argument or at least explain it with a good definition of marriage.
Justin:
You have only just begun to define marriage, my dear Sir. What, pray tell, counts as a marriageable couple? I can't marry my mother, now can I?
Consanguinity is already prohibited in marriage, so your argument is a strawman. a "Marriageable couple" is two consenting adults who wish to enter into a legally recognized relationship in the eyes of the state. All the normal rules of marriage still apply; the only difference is that now the couples may be same-sex rather than exclusively heterosexual.
Also, I think Judge Walker explained it pretty well near the beginning of his opinion (which you should really read if you haven't already).
" Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages."
Justin, I'm not asking you for the legal definition of marriage. I am asking for something more important than that.
But let me put it this way: If I wanted to marry my mother, wouldn't the laws forbidding consanguinity be an affront to my civil rights?
Mark B.
If SO, then you must believe that there is a civil right there, which means that there is such a thing as a right to marry my mother, which means that such a thing is an acceptable form of marriage. But if this is the case then your definition of marriage is surely too broad, for it allows the unthinkable, matri-gamy.
But if NOT, then you must believe that there is no civil right there, which means there is no such thing as a right to marry my mother--in which case I return to my question: What is this thing, marriage, to which I have a right if I love a woman or a man, and to which I do not have a right if I love my mother?
Mark B.
Postcript: I have to go focus on my work, so you have the last word in this forum. If you want to keep it up, you'd better email me: M_Boone AT Baylor.edu
Mark has made his point clear. We already make limits on marriage and I don't think anyone's prepared to allow people to marry whomever they wish. But exactly what makes homosexual marriage legal or illegal is where these discussion always break down. Why, or why not, allow it?
One final remark on my way out: You think that same-sex relationships can be marriage. Well and good: Now explain yourself. Is the same true of consanguine relationships, or zoophiliac relationships, or adult-child relationships?
If NOT, then why not? What definition of marriage excludes these things and allows same-sex relationships? The Prop 8 supporters were kind enough to give us their definition of marriage; what is yours?
But if SO, then what remains of the definition of marriage?
Mark B.
Maybe, but there is a compelling state interest in preventing related people from marrying one another; namely to prevent abuse and exploitation and to prevent genetic problems that may arise.
The fundamental question is whether there is a compelling state interest in regulating a behavior, and whether that regulation is narrowly tailored enough to protect that interest without infringing on other interests. With gay marriage, there is simply no compelling state interest in keeping two people of the same sex from having their relationship legally recognized. It fails the constitutional test required to allow discrimination, plain and simple.
"But exactly what makes homosexual marriage legal or illegal is where these discussion always break down."
I disagree, Adam. More precisely, where these discussions break down is: WHAT MAKES HOMOSEXUAL RELATIONSHIPS MARRIAGE OR NOT?
Mark B.
Postscript: This time I am really leaving!
Mark, your argument loses merit when you equate same-sex marriage with adult-child marriage or zoophilic marriages: children and animals cannot consent to marriage and thus are not relevant to this discussion. To answer Adam's question, and by proxy Mark's question, "But exactly what makes homosexual marriage legal or illegal is where these discussion always break down. Why, or why not, allow it?"
As I have explained earlier, the government must have a compelling state interest in infringing on a fundamental right, and that infringement must be narrowly tailored to achieve the state's goals. In the case of consanguinity, there is a compelling state interest in preventing parents from marrying their children, brothers from marrying their sisters, etc. There is no compelling interest in preventing two consenting adults of the same sex who meet all the other formalities for marriage from having their relationship legally recognized. What such a rule does, in effect, is to say that a man's choice to love a woman is more important and worthy of recognition than a man's choice to love another man. And that's not a judgment the government should make.
Why not? We deny a man to marry two women even if all parties agree to it? You'll need to provide a stronger argument than saying it's wrong.
Justin, you're still assuming that it is discrimination. I repeat: That assumption rests on the premise that there is a right here, which rests on the premise that there is or could be such a thing as same-sex marriage, which rests on some understanding of marriage which you have not clarified with a definition.
(For the record, I have not equated same-sex marriage with zoophilia or anything else. I am asking you to clarify the difference. I also haven't defended the Prop 8 definition of marriage: just shown that Prop 8 opponents would do well to give us a definition.)
I apologize for the misinformation about my absence, but this time I am actually logging off and walking out of the door!
Mark B.
We don't allow polygamy because there is a compelling state interest in upholding the laws of community property, intestate succession, taxation, etc. It is a narrowly tailored restriction.
Mark, you keep saying that this discrimination is based on the presumption that there is a right here. The right to marry has been construed in Loving v. Virginia under the US Constitution as a fundamental right, meaning that the State cannot impose restrictions or regulations on this unless they have a compelling state interest and a regulation that is narrowly tailored to effectuate that interest. It's called the strict scrunity test, and the plaintiffs in this case failed to show exactly what the compelling state interest is. And frankly, I still haven't heard a good argument for why the state and federal government need to keep gay people from having their marriages recognized at law. I'm still waiting.
which rests on some understanding of marriage which you have not clarified with a definition.
Marriage is a legally recognized union between two people that confers various rights, obligations, and responsibilities. It is akin to contract law in may ways, and is very often treated as such in dissolution or termination. I don't know what kind of definition you're looking for, but that is essentially the legal definition and the one at issue in the Proposition 8 discussion.
Well, a working definition has been proposed, at last, which is what Mark was looking for. Alas, he's gone.
I can give reasons why people should be allowed to marry multiple spouses, animals, and buildings. Who am I to say my neighbor shouldn't marry two women? Does federal interest overcome personal choice?
It's still a sticky subject.
So animals and buildings are individuals that have the capacity to enter into a contract? Don't be ridiculous. As for "federal interest," these are public policy concerns that have been weighed and we have made a determination as a society that these regulations are sufficient to protect against the concerns we have in each particular situation. When it comes to marriage, I have yet to hear a nonreligious credible argument as to why same sex couples should be denied equal protection under the law. I'm still waiting.
As I've said, this issue doesn't interest me, much. I'm not trying to convince you of anything, but I've not seen good arguments by anyone on this issue. There are those who argue against homosexuality ontologically and naturally, but their arguments are waved off with words like "intolerant." No one's budging on this one.
I am not interested in the moral or religious underpinnings of homosexuality, I am only interested in the fair and equitable application of the law, which I have tried to explain for those perhaps not as familiar with constitutional law as I am. I don't care if someone is intolerant toward homosexuality; there are plenty of things that everyone is intolerant of. The issue here is whether or not the government can articulate a compelling interest in denying marriage to same-sex couples, and I have yet to hear one.
I understand what you're saying. I could respond, but my response would be identical to the thing I just said, since you are repeating yourself.
As a Christian and someone who is for the legalization of gay marriages, I'm probably not going to write anything that you're expecting.
This conversation has been interesting so here are a few random thoughts at the moment.
Adam, did you see my comments on the megachurch post?
First off, the idea of a "legal" definition holding any kind of value or weight is asinine. True, it is important as if the state recognizes something, as most of the time and it will be the case here, everyone has to recognize it no matter their viewpoints. Alas isn't it great to live in the land of the free? Moreover, I'm pretty familiar with constitutional law, although not California's, and it's merely a bunch of bullshit, aside from the issue of jurisprudence which is too for the most part.
Marriage last time I checked with someone who didn't have their head somewhere, is not a contractual relationship. It's understandable for a state to operatively treat it as such, especially since there's a decent chance for divorce where they state will have to arbitrate such disputes. For the rest of us though there are probably better models to operate with.
Interestingly, for a religious argument it's a good time to be a Catholic or Orthodox, as then marriage can be a sacrament. In this case, two people with single identities (or married in the case of polygamy) can engage in a marriage ritual through which God unites them and afterwards they pop out and are recognized primarily socially (then legally) as one flesh. Of course Protestants need to take out the God aspect leaving a purely sociological ritual. In this case the question of validity becomes more problematic. The state though can even take out the ritual, as couples who wish to legitimize their relationship often do with a "common marriage".
A compelling interest is really a loaded term, constantly changing. It's a good thing that you don't pose such a question to a logician cause they might pop out a few logical possibility arguments for both sides. Luckily in this sense, a compelling interest is a loaded term and judges rather than people trained to think logically are the ones who determine this slippery criteria.
A ritual does not guarantee a true marriage, and only time unfolding to society who nonetheless still recognizes the marriage, cause they went to a state clerk or had their buddy with an online ordination make them repeat a few vows.
Joshua
Not making my living engaging in a profession where shoddy hermeneutics is lauded and praised, I gotta say that lucky for the judge that a "rational basis" also doesn't entail what a logician might throw out there.
Joshua-
This discussion is not about the sacrament of marriage, religiously or otherwise. This is about the legal rationale behind the decision to extend governmental benefits, contractual rights and obligations, and legal privileges to a certain class of people.
You say that Constitutional law (and to a lesser extent, jurisprudence) is merely a bunch of bullshit. I'm curious to know what you mean by that.
Adam, I thought this was very honest, and touched me very deeply, personally. My mother has been leading a homosexual lifestyle for almost 15 years, and I have always believed love the sinner, but hate the sin. I wish other people could open their hearts and minds to this concept. For me, it came down to do I want to lose my mother, or love her as she has always loved me, in spite of all I put her through. Kudos
*shrug* The original post was about the politicized Christian response to Proposition 8. Sacrementology and the bible since it supposedly underwrites the supposed "religious basis" and moral disapproval of much of the conservative agenda might offer something to the discussion other than rehearsing all too familiar arguments. No? In fact I might suggest that the reason the discussion automatically went that route was precisely cause of familiarity. Public discourse needs more than to be stylized by that which has "most universal assent".
For starters about bs, again shoddy hermeneutics. Faithfully interpreting the legal documents and constitution is not a virtue in legal practice, rather using the history of interpretations as found in case law to support one's adjudication is. That right there is problematic at best. And while we might conclude that being problematic isn't the worse thing in the world, when we sit down to analyze the history of this process from liberty of contract to the right to privacy for two of the biggest examples to countless other constructs, a heavy case can be made that there's been a serious abuse by the courts from the aspect of justice and democratic functioning. Indeed their constructs often times don't even resemble anything found in the constitution. As well legalese locks itself into certain modes of communicating and comprehending the issues of cases. The reasoning within Constitutional law beyond being dubious, is realistically unaccountable to any type of critique from other quarters of society resulting over time in a form of groupthink.
I'm saying its bullshit basically as a semi-descent human being looking in on the process. Do you follow by chance Stanley Fish's blog? Especially when he really gets into outlining the nuanced developments from cases surrounding an issue, I'm not sure an appropriate response isn't to just be sick at the monstrosity that's become our court system. It's not that I don't understand the significance of these developments, most debatable in themselves, its that there's no stepping back and reflecting where we've come except in highly politicized decisions overturning precedents. There is zero pride from me in what I see going on. To point, the content is little more than disconnect from reality masquerading otherwise. It's elitist, it's pretentious, it's illogical and confused. That's a quick overview of my opinion and where I'm coming from with my bs comment.
Again, I agree that gay marriages should be legal. Rational isn't though the word for the debate or process going on; absurd is the word we're searching for.
Josh
Let me put it this way, the practice of lifting a phrase from a document, and then looking to the most "persuasive" argument for construing an interpretation to apply, while perhaps not arbitrary is contrived at best. And this opens it up to being analyzed and critiqued.
I'm still not quite sure what you're against here- is it the interpretation of constitutional languages by judges, or the overturning of the voters, or the use of precedent. All are fundamental to the common law system of courts that we use, so I'm still not quite understanding what it is you're unhappy about. Do you not like it when judges overturn precedent? Because it happens all the time, and rightly so. Do you not like it when judges have to interpret statutory and constitutional language, because it's entirely necessary given that our laws are written by legislatures and not lawyers (much to the chagrin of us lawyers, believe me). Maybe it's just late or I'm just not focusing enough, but I'm really having a hard time grasping what it is you're displeased with, especially since you say you think gay marriage should be legal.
What I'm displeased with is in order.
1. Christian's lack of love toward other human beings. I don't mean this as some rhetorical generalized ideal.
2. Christian's over-realized eschatology. Basically their confusion of their religion and their politics and how these two interplay. I think basically they confuse their politics as their religion, yet still allow some religious sentiments they don't really understand religiously to make their way into their politics.
3. Christian's ignorance. I really wouldn't have a problem with this if it weren't for the #1.
That's it. As an aside note as a political junkie, I'm for the most part meh as far as legal proceedings go, except when I'm hit by an over-excessive exposure to it. I think it's bullshit, so I'd recommend not holding to it as normative. Now...
If democracy is the coercion of 51% telling everyone else what to do, our republic is the authoritarianism of "representatives" or those in power setting the agenda. That's supposed to be humorous, not a serious critique. I don't have a problem with courts overturning voters or legislation, that's an implication of judicial review. However, the basis for such review is the constitutionality of said decisions. If they are overturning legitimate legislation that's not unconstitutional, then I'll say they've overstepped their constitutional boundaries. In part I'll also say their attempts to make it appear unconstitutional when it's not is bullshit. When they start doing this in a way as to set America's policy in ways that are unjust, then I have a problem. My problems though have nothing to do with classifying it as bs.
I'm personally glad when precedent is overturned when it legitimately leads to a more just way of doing things. When it's feigned as "neutrality" though, its bs whether I approve or not. I'm not a fan of English common law, but that's our system. Even a bad system can be subjected to less abuse than a good system. The pretense at legitimacy is game.
On the other hand, I'm more or less indifferent to precedent being overturned for purposes of advancing some construct like the "democratic consensus". Again though, how they do that is often bs, whether I'm indifferent or not.
It's judges job to interpret constitution and statutory law, which I'll be the first to cede it's poorly written! I just think that they interpret poorly. Now over enough beer and enough time in conversation, I'm pretty confident I could convince you of this point and learn a lot myself from you in the process. I'll just say this, if one is looking at a piece of literature written in 1868 predominately about black people and translating that as protecting homosexual's right to marriage, one has an uphill battle in terms of selling that to most intelligent people. While I might give points for creativity and effort, they'ld get an F if that was anything other than a part of the constitution.
Joshua, I would like to hear more about how you think one's religious views and one's politics should and shouldn't interact. I really don't understand how they couldn't and the person in question still be internally consistent.
Justin T said, "In the case of consanguinity, there is a compelling state interest in preventing parents from marrying their children, brothers from marrying their sisters, etc."
And what would be the compelling interest to which you refer? Genetic/reproductive? Then the state could not "reasonably" apply it to two brothers getting married... or two sisters. And a 25y/o male could be in a relationship with his 42y/o biological father... holding themselves out to society as married. Could the state find a compelling reason to prohibit calling such a relationship a marriage?
-kersimo
kersimo-
yes, there is a compelling state interest in preventing family members from marrying each other. Aside from the genetic issues, there is the inherent problem of consent- can a child ever really consent to a parent's advances? Additionally, there would be some problems with things like division of property and inheritance if people are both married and related, so the state has a compelling interest in preventing that. These and other problems can best be addressed by prohibiting the behavior entirely. Those same concerns don't apply to two non-related same sex individuals who wish to marry, so the state has no compelling interest in preventing that marriage on any of those grounds. And I have yet to hear any other valid ones.
You are assuming a direction of a parent seeking the relationship with the child... such is not always the case. Also, the state cannot tell how controlling a male has been of a female (or vise versa) before they reached the Justice of the peace to be wed.
As far as property division - no problem there either, the mother/daughter or son/father couple is to be treated the same as any other couple. Perhaps you could elaborate of the problems that you perceive in this area.
-kersimo
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