While I believe the U.S. Supreme Court got it right in Lawrence v. Texas when they overturned the Lone Star State’s sodomy laws (though I disagree with the court’s rationale, believing the majority should have used the Ninth Amendment), I think those state Supreme Courts (Massachusetts, California and Connecticut) mandating gay marriage got it wrong.
And the difference, as I see it, is between a liberty interest and a state benefit.
Those who read this blog carefully note that I repeatedly refer to state recognition of marriage as a benefit, not a right. If marriage is a right, we already have it. A right simply means the freedom to do something. Gay people remain free to marry same-sex partners even if the state does not recognize our unions as such.
Even after Tuesday’s vote, couples who got married when the state recognized their unions will not be incarcerated or forced to leave the state should they continue to call their partnerships marriages.
Hence, the distinction between Lawrence and the various marriage cases.
Under Texas law (and that of a number of other states), before the decision was handed down, you could be arrested for engaging in consensual sex (as were the plaintiffs in that case).
With marriage, however, the issue is state recognition of the unions. Voters of California did not strip gay people of a right, as some activists claim. They merely voted to deny us the privilege of having the state call our unions “marriages.” But, we remain free to call them whatever we want.
In the coming days, despite this vote, I will continue to call my gay and lesbian friends married if that is how they choose to define their unions. And I highly doubt government officials will attempt to prosecute me for so speaking my mind.
The issue now is to make our case to California citizens why the state should call our unions marriages. And angry protests demonizing various churches will do little to accomplish that goal.
As I’ve said repeatedly on this blog, state recognition of same-sex marriage represents a huge social change. And social change can be a good thing. It’s time to show why that is so.
The burden falls on those pushing the change.
Related: Classical Values: Keeping the news in the closet (Via Instapundit)
The problem with the Ninth Amendment is that it can’t really be used positively. The Ninth Amendment says that you can’t use the Constitution to deny rights not listed there. It doesn’t affirm any rights, however, either.
If you’re going to affirm rights, you will have to have some separate justification. Since the only thing that made the action illegal was the sex of the partners, perhaps there might be some Texas or Federal sexual discrimination laws that would apply. After all, if you the change the sex of one partner, the statute no longer applies. That makes it sexually discriminatory.
While it may raise the ire of many in the G/L community, I tend to agree with GPW when it comes to “gay” marriage….it’s a social-construct, not a Right. While we do have a human and/or civil Right to have a meangingful, shallow or anonymous relationship with a member of the same (or opposite) sex; marriage is a social contract that involves the community, not just the two individuals involved directly. As in the commonly-used words of the typical Protestant rite, “ …assembled here in the eyes of God and by the power invested in me by the State…“, marriage has always involved the community extending it’s customary authority and sanction to the institution….and recognising it’s limitations.
Historically in all cultures…or in the absence of a culture… two, three, or more persons have the ability to shack-up for fun and’or reproduction, with or without societal sanction. But “marriage” has always implied a “sanction” within societal norms and rules; albeit varied from culture to culture. Sanctions defining duration, number of participants, relational taboos, property and inhertiances issues, etc….
I love this site because I can find comments of people who think the way I think. I was glad that Lawrence v. Texas struck down sodomy laws, but I too disagreed with the reasons cited by the court. I looked at it as violating equal protection under the law because, in Texas, the equivalent consensual sex acts, when performed by members of the opposite sex, were not illegal, as is the case with other states affected by the decision. In fact, the Texas law was called the Homosexual Conduct Code.–It had less to do with sodomy and more to do with who was doing what to whom.
With regard to the protests in L.A. I’m also in agreement about not lashing out a church, and acting like morons. The people decided, respectfully move on, and stop whining about the so-called ‘right’ to marriage.
I have to disagree with your analysis. Using Lawrence v. Texas for the foundation of your marriage argument is odd. Yes, Lawrence is a gay rights issue, but that doesn’t mean it is the precedent on which you should rely for an argument on same sex marriage.
Let’s, instead, look to the SCOTUS decision in Loving v. Virginia. This case dealt with interracial marriages. SCOTUS specifically came out and called marriage a fundamental right.
“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”
If we’re going to discuss whether same sex marriage is a fundamental right, why not do so in view of Loving. That would at least provide a relevant basis for our arguments.
I guess what you’re also saying is that there is no fundamental right for interracial couples to be married. Or for any select group of people. Are you willing to go that far? Your argument simply provides a slippery slope having scary potential outcomes.
I think, at least for my firends here in Louisiana, the issue is not what it’s called for that sake alone, but for the rights, privileges and benefits bestowed therby. We’ve been doing holy unions “in the sight of God ” here for 25 years at MCC Baton ROuge (www.mccbr.org). But Louisiana makes no provision for unions outside of marriage. It is up to us to secure the 1800 different benefits by other contracts. We did defeat an attempt to legislate “no gay contracts” into the amendment. Our state supreme court said there could be no proscrtption against any two people making a lawful contract, gay or not, so the really evil intent of the amendment was dashed into rocks by Forum For Equality’s attorneys. We will get full equality someday.
I believe many of those who voted for 8 were truly informed, but rather coerced with messages that elicited fear, fear of change, and some rather ugly advertising.
I hold no ill will towards those who voted for 8, for many folk it would have been in conflict with many beliefs, but beliefs can be changed.
It is through the heart, the interpersonal relationships, that will move this change. Not threats, not fear tactics, . . .
oops. . .meant. . .uniformed
through some very ugly information
Dan, did you even read my post?
I said we have the freedom to marry. The issue is state recognition. It’s right there in the title.
Don’t attempt to put words into my mouth. Remember, bans on interracial marriage are a statutory creation. Sexual difference has been a defining aspect of marriage.
Slippery slope? What slippery slope? The issue is changing the definition of marriage, not incarcerating same-sex couples.
Rusty, I don’t think those who voted for 8 were coerced, but did so because they believe marriage is between a man and a woman. The opponents of the initiative didn’t do a good job of making the case why we should change the definition.
I’m so glad you posted this.
In Mexico, years ago, only Catholic weddings were ”legal.”
But Protestants of all denominations still exercised their ”right” to marry.
They simply had private church weddings.
AND they also knew that their children would not have certain privileges that Catholic children had.
They accepted the consequences of their own actions and went ahead.
Eventually the Mexican government buckled under.
Now all sorts of marriages are legal there.
#9: I had no idea of that. Churches, synagogues, what have you that support gay marriage and wish to perform them should continue to do so whatever the consequences if they really support it. It’s time for the true supporters of gay marriage to put their money where their mouths are.
If marriage is truly a “basic civil rights of man” and “fundamental to our very existence and survival”, then it would be illegal to ban it in any instance.
Since courts haven’t struck down bans on polygamous, incestuous, and pedophilic marriages by claiming that marriage is a “civil right”, one should read Loving in the context of the fact that there are three constitutional amendments making it clear that our laws should be as race-blind as possible.
Dan,
You should read up on Baker v. Nelson. Short version: the same Court that handed down Loving, ruled that there’s no right to SSM. Are they bigots too?
You have the right to marry a member of the opposite sex. You chose not to. That is also your right.
If you wish to marry a member of the same sex, you need to convince a majority of the voters in your state that they should recognize such unions as marriages. AS GPW said, the burden’s on you. Why? Because SSM is not the fundamental underpinning of any society, and OSM is.
You have the right to marry a member of the opposite sex.
Greg, wouldn’t you agree that this is a right that should be discouraged?
I know you didnt ask me, but it depends on the reasoning and the commitment. If a person wants to have children I think they should look seriously at whether they can do so within traditional marriage, because if they can i think its best for the child. Obviously if they cant, then of course they shouldnt.
That’s okay, AmericanElephant, I appreciate your answer, even if I disagree with it. Here’s the thing, we all agree that marriage should be a lifetime commitment, and one should with that in mind when deciding to marry. But we know that even when persons go in with the best intentions and plan a lifelong commitment, that does not end up being the case. A gay person going into a marriage with someone of the opposite sex already does not have the best of intentions. It’s not fair to his spouse, even if he does remain true, unless the spouse is aware and is willing to take a big chance. Then again, such a spouse going into a lifelong commitment has to realize that the odds are against it happening.
Should be “that does not always end up being the case.”
“…Because SSM is not the fundamental underpinning of any society, and OSM is.” WTF? Ohmygod what a complete and utter load of unadulterated tripe THAT notion is. The idea of “marriages” with western, European societies were originally ONLY for nobility, and ONLY as a means of preserving wealth and blood lines – and only rarely had anything remotely to do with personal committment or sexual fidelity or who was raising whose children. “Marriage” was aped by each lower class (mercantile down to peasant) as living standards increased over time – and eventually the so-called “nuclear” family construct that eventually followed in the Victorian era (displacing the extended family model) was another item that passed down from royalty to hoi polloi as social aping. Please stop talking about “marriage” as if it were some carved-in-stone since Ur concept. THAT’s the argument the fundies use to try to maintain the status quo – and they are blatantly WRONG. But then they like to ignore history. They also think the earth was created 6,000 years ago and is flat.
The only difference is there isn’t a license from the State at the end of the ceremony.
Are you telling me that you are unaware that even before June 17th, many religious institutions performed SSM? The State never came in before to stop them, they won’t now. The only thing they won’t do is give out the State license along with what blessing or certificate the Clergy give.
It’s amazing to me that for the Left only if there is government approval is there any validity to their actions.
Leah, that was MY point in comment #9.
Forget the State.
Go ahead with your lives.
Eventually, like what happened in Mexico with Protestants will also happen in the USA with SSM.
The groundswell of approval of their Catholic neighbors made it happen.
A groundswell of approval by straight neigbors will make it happen here, too.
Civil unions is the way to go. That is just my opinion.
Marriage by definition has been defined by “religion.” If government is to administer marriage license, then it must allow SSM as well. Since marriage is bounded by religious rite, then either government should forgo of marriage licenses and creates some sort of super-set of unionization of two “consenting adults” which covers everyone. This would incidentally leave the traditional definition of marriage back into the hand of religion. Which means, if any religion institution that does not support marriage between the same sex couples would be immune from any laws that label their decisions discriminatory.
In either case, government/state should detach itself from religion and come up with its own plan to handle union between couples. Meanwhile, any religion should be free to decide whether they agree or disagree to allow SSM. Nevertheless, in the eyes of the state, everyone would be equal and enjoy the constitutional rights while those who seek the approval of traditional marriage defined by their religion also manage to adhere to their faith.