We the People
August 7th, 2010
Pastor Jim Garlow’s personal and public statement on the Prop 8 Overturn includes this gem:
We would have wished the judge would have looked at the first three words of the U.S. Constitution, “We the People.” There’s a reason why that document does not begin with the words, “I the Judge.”
Whether you think same sex marriage is good policy or bad policy, judicial imposition can’t possibly be a good thing. The public policy aspects of same sex marriage were thoroughly vetted over the course of a very expensive campaign.
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What part of the role of judges do you not understand? The judiciary is to protect the constitutional rights of the individual against the arbitrary and discriminatory tyranny of the majority. That is the beauty of our Constitution. No mere majority is allowed to deprive a minority of fundamental rights. If they do, the judiciary is supposed to step in and stop it when persons of that minority ask for the help of the judiciary. Man, I wish people understood how our system of government functions. Just because you like something a certain way, even if most people do, and even if it has been that way for a long time, that does not make it constitutional. It took a court decision to end legal segregation in this country. Do you believe that the Supreme Court usurped the will of “We the People” in Brown v. Board of Education? How about in Loving v. VA? Did the Court take away the voting rights of “We the People?” My goodness, the intellectual dishonesty and foolish rhetoric astounds me.
But what are “fundamental rights” and who gets to determine what is a fundamental right? The judiciary does not exist to protect minority rights or majority rights. The judiciary exists to interpret the law and to protect universal rights. The judge has asserted, in my view invented, a new universal right (the right to genderless marriage). To do so, he has to invalidate centuries of tradition, going back to English Common Law (judges are supposed to honor precedent), and invent a new definition of marriage, in contravention of the constitution of the State of California and most other states. This assertion will be appealed all the way to the U.S. Supreme Court. The Warren Court would have been astonished if you told them that gender must be considered equivalent to race. I believe the Roberts Court, known for its conservatism, is unlikely to approve this new right.
The fundamental right is marriage. A fundamental right belongs to all citizens, not only those who are heterosexual. By discriminating on the basis of gendered pairings, you are denying that fundamental right to an entire class of people with no legitimate reason for doing so. What good is a fundamental right if you cannot exercise it? How could I have had a fundamental right when I was dating a man, but I was suddenly stripped of that right when I fell in love with a woman? This emphasis on gender is really quite bizarre, and it rests on outdated gender stereotypes and norms. Marriage does not depend on gender for its meaning or for its function, just as it does not depend on procreation for either. I find the quest of conservative people to define marriage based on gender to be incredibly insulting and demeaning to the institution. The judiciary DOES exist to protect minority rights–the very concept of a civil right means that a person or group cannot be deprived of that right, whether it is by an act of the majority or an act of the government. When that happens, the judiciary is the body with the power to fix it and to affirm those rights, even against the will of the majority. We are ALL American citizens. There is no new definition of marriage that is being created. Marriage is marriage is marriage–two people who love each other and promise to provide for and protect one another through life. The only difference is that its benefits and protections are being extended to people who have been shut out of the institution simply because the majority disapproves of their sacred relationships. But moral disapproval or religious ideology is no proper basis for civil law. I frankly cannot wait for this case to go to the U.S. Supreme Court. With three women on the Court and with Kennedy as the swing vote, the man who wrote the opinion in Lawrence v. TX (holding that a person’s intimate sexual choices are part of the fundamental right of privacy that is protected by the due process clause of the 14th Amendment), I feel pretty good about our chances. Even Scalia, a man known for his ardently conservative opinions said in his dissent in Lawrence that if moral disapproval was not a legitimate basis for proscribing conduct, then there was no legitimate reason to deprive marriage for same-sex couples. Let’s also keep in mind that the advocates of Prop 8 failed to put on even a halfway decent case. They failed to prove that which they claimed they would prove. They failed to prove a legitimate reason for depriving LGBT people of the right to marriage. If a right does not apply to every single American regardless of arbitrary characteristics like race, gender, or sexual orientation, it seems foolish to call that right fundamental. And I for one cannot wait until the day that the Supreme Court upholds our Constitution and the principles of liberty and equality upon which it is based.
Finally, I learned that the Mormon and Catholic churches primarily spent tens of millions of dollars trying to pass Prop 8 and deprive their fellow citizens of equal protection under the law. I can’t help but wonder how many people that money could have fed, how many young adults it could have sent to college, how many homeless for whom it could have helped secure shelter, how many families it could have supported who need help. It is absolutely tragic to me that these folks can call themselves Christians and yet can waste their money hating gays and lesbians and working to deprive them of legal rights when there is such need in this country. I wonder whose rights Jesus would have voted against?
Just for the record, the Mormon church does not exist. The correct name for that denomination is The Church of Jesus Christ of Latter-Day Saints, which contributed no funds to the campaign to Prop 8. Any “Mormon contributions” were made on the part of individuals who happen to also be LDS.
Marriage has historically been defined and a union of the opposite sexes. That was what was declared to be a universal right. It was a right always available to homosexuals, but it was not a behavior they wanted. What they want is to redefine marriage to something more their liking. By changing the definition and hijacking the institution, they turn the Loving decision upside down. Loving ruled that marriage was a right necessary for survival. That only makes sense if marriage refers to the natural offspring of marriage. If there is a gay gene, homosexual marriage is not a formula for genetic survival, it is a formula for genetic extinction.
Lawrence v. Tribe was decided on privacy grounds, not on the invention of a universal right to sodomy. The majority opinion in Bowers, written by Justice Byron White, framed the legal question as whether the constitution confers “a fundamental right upon homosexuals to engage in sodomy.” Justice White’s opinion for the majority answered this question in the negative, stating that “to claim that a right to engage in such conduct is ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.”
Any judge who thinks “The People” ratified a right to same-sex marriage when they passed the 14th Amendment is smoking crack. On acid.
The amendment’s text says what it says.
What do you think it should have said?
Leo, Bowers v. Hardwick was overturned by Lawrence v. TX, so frankly, and resort to the language of that case is useless and irrelevant to the case at hand. And fear not; gays getting married won’t cause genetic extinction, since our marriages will have no effect whatsoever on the choices of heterosexuals. Did it ever occur to you that when the Loving Court spoke of the necessity of marriage for survival that it was talking about something much deeper than mere existence? Because the last time that I checked, it doesn’t take marriage to make babies. Consider also this language from the Court: “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Loving. “We deal with a right of privacy older than the Bill of Rights – older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.” Griswold v. CT. (where in that definition do you find anything about procreation?). “This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment” Cleveland Board of Education v. LaFleur
Consider this language from the Court in ruling that it was unconstitutional to deprive prison inmates of the right to marry:
“The right to marry, like many other rights, is subject to substantial restrictions as a result of incarceration. Many important attributes of marriage remain, however, after taking into account the limitations imposed by prison life. First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits (e. g., Social Security benefits), property rights (e. g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e. g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals.” Turner v. Safley.
Nowhere in the Court’s discussion of marriage is there an emphasis on procreation. The Court rightly understands that marriage is all about the bond between two people who love each other, the personal choice of who to marry is a fundamental right that cannot be abridged on the basis of arbitrary discrimination.
Marty, there is no need to find “a right to same-sex marriage” in the 14th Amendment. The only right that matters is the one which promises equal protection under the laws to all citizens of this country. I don’t remember a clause that reads: “except if you’re gay.”
Heidi, we respectfully but firmly disagree that marriage as a “gendered pairing” represents a discriminatory stance. Everyone has the opportunity to participate, regardless of their sexual orientation. Not everyone wants to participate. This does not constitute any kind of discrimination.
The last paragraph in your post cuts both ways. How many people could be fed/housed/helped by the money spent trying to knock down Prop 8? What about the people being paid to follow around and heckle NOM’s bus tour–wouldn’t those resources have been better spent to save people in countries where homosexuality carries the death penalty? (I should also point out that there’s a huge outpouring to feed/clothe/help others that goes on anyway by the Christian church and wasn’t stopped or slowed by efforts to defend marriage, but I haven’t heard of any attempts by the alternative-lifestyle community to help the persecuted in other areas. I would hope that goes on, but it’s certainly not visible at all.)
Lawrence Tribe was the lawyer in the case of Bowers v. Hardwick. That case was overruled by Lawrence v. Texas- not Lawrence v. tribe. As has been pointed out the Bowers opinion was wrong when decided, is not now the law, and is irrelevant to the case at hand.
Norrie, with all due resepct, the fact that you can even argue that “Everyone has the opportunity to participate [in marriage], regardless of their sexual orientation. Not everyone wants to participate. This does not constitute any kind of discrimination.” shows your absolute ignorance (in the true definition of the word) about sexual orientation. Hundreds of thousands of LGBT people desperately want to participate in marriage–that is what this battle is all about. To suggest that in order to exercise an individual fundamental right one must betray his or her own intrinsic identity is beyond appalling. It is heartless and cruel. There is no such “opportunity” to participate in gendered marriage if you are not attracted to the opposite sex–at least not without great personal harm and harm to the person of the opposite sex who marries someone who is not sexually attracted to him or her. I wonder what that would feel like if your spouse didn’t find you attractive? If your spouse didn’t want to be intimate with you? If any such intimacy caused your partner to feel disgust? Yeah, that sounds like the basis for a happy marriage all right. It just absolutely blows my mind that you can say something like that. Wow.
And yes, it IS discrimination. It is discrimination against individuals based on their innate sexual orientation, whether you choose to acknowledge it or not. And that discrimination harms hundreds of thousands of people and their families, every single day. But of course, you don’t really care, do you?
oops–with all due “respect”
Heidi, basically you’re arguing that what you feel should trump what marriage is. I disagree. To allege that I do this because I am heartless/cruel/ignorant is to miss my point and fail to make a compelling one yourself.
Marriage, by definition, is the union of one man and one woman. That is the point we’re trying to make. If a man wants to unite with another man, he wants something other than marriage. Every time I’ve brought this up, I’ve tried to make it clear that we’re not trying to throw up boundaries to prevent people from being with those with whom they want to be. However, redefining marriage is not the way to solve this problem.
For two-sexed marriage to be discriminatory based on sexual orientation, the following would have to occur: when two homosexual people of opposite sexes showed up to get married to one another, they would be denied a license because of their homosexuality. Homosexuality is not a barrier to marriage. (Also, you can’t do anything with marriage just because you’re heterosexual–two heterosexual men can’t show up to get married to one another.)
I’m insisting on this distinction not to annoy anyone, but because I feel that the wording used to describe the problem doesn’t accurately convey what’s going on–and what hope do we have of solving it well if don’t accurately address what’s occurring?
Marriage is bigger than homosexuality or heterosexuality. It is the most fundamental unit of society, special because it allows a man and a woman to come together, bear children, and rear them cooperatively. We dismantle it at our peril. Let’s treat exceptions to this model as exceptions, not as evidence that the model should be thrown out or fundamentally changed.
Thus providing a textbook example of begging the question.
Excellent point Marvin, but I’ve found that some folks on here really don’t understand what logical fallacies are. Norrie, that may be YOUR definition of marriage, but it is NOT mine, nor is it the definition of many people, including many married heterosexuals. Marriage to me is something so much more than mere opposing body parts. It is a commitment to the one that you love and that person’s commitment to you to love and support one another and any children you may bring into that family for the rest of your lives together. It is about fidelity, honor, sacrifice, love, commitment, and building a home and a life together. And same-sex couples are just as capable of fulfilling the obligations of marriage as heterosexual couples are.
Two homosexual people of the opposite sex would never WANT to marry each other, unless they were doing so for reasons unrelated to the reason why other people get married–because they love one another and want to build a life together. And two heterosexual men likewise would not want to marry each other either, because again, they are not in love with one another. So please, don’t play silly games here. Two homosexual persons in love with each other want to get married for the EXACT same reasons that two heterosexual persons in love with each other want to get married. And men and women come together and bear children and rear them cooperatively every single day in this country without marriage. Not to mention the hundreds of thousands of kids being raised by same-sex couples in this country. So let’s not pretend that marriage is all about making babies and raising them together. I have raised a child with my daughter’s father. We never married. And yet we have parented cooperatively without the need for court intervention at any point. And not every heterosexual married couple has children. But no one prevents them from getting married. Even elderly people can get married! And what number husband is Elizabeth Taylor on by now? Is it eight or is it nine? How about Larry King? Don’t try to pretend that marriage is about having children, because it absolutely is not. Children may be a byproduct of some, even most, heterosexual marriages, but it is not a prerequisite for marriage, nor does procreation define marriage. It never has, and it still does not.
We are not asking for marriage redefinition. We are asking for the same constitutional right to marry that heterosexuals are allowed to exercise. If you believe that marriage is a union of a man and a woman, then fine, don’t marry a person of the same sex. But you have no right to deprive another citizen of this country of a fundamental right just because you don’t understand that couples of the same sex are just as capable of marriage as couples of the opposite sex are. Thousands of same-sex couples are already married in several states in this country. That’s right, they are MARRIED. Just because you don’t like it, doesn’t make it any less true.
And don’t worry, the sky is not falling. It hasn’t fallen in the states that recognize the right of every citizen to marry, and it hasn’t fallen in the countries where couples of the same-sex are allowed to marry. Why must we treat exceptions to heterosexual marriages as “exceptions?” It’s not like heterosexuals are going to turn gay if we allow same-sex couples to marry. It’s not like gay people are going to turn straight if they are denied the right to marry. Nor are we going to stop raising children, even we cannot “make” them with our partner’s genetic material. We are dismantling NOTHING. Straight people will continue to marry people of the opposite sex and they will continue to make babies. Men and women are not going to stop coming together, bearing children, and rearing them cooperatively if gay people are allowed to marry. How absolutely ridiculous to suggest otherwise. I swear, you’d think homosexuality was contagious with the level of hysteria that surrounds this issue. Just let people live in equality already. No one is going to bother with your straight marriages and the children that may or may not result from those marriages.
The ONLY way to solve the problem of inequality under the law is to afford equality under the law. And we will get there. If the children of my daughter’s generation understand anything (she’s 17, so close to being able to vote), it is that discrimination for arbitrary reasons is absurd. She has friends who are gay, straight, and bisexual. Gay and lesbian kids in her school have come out, and even though discrimination against them still exists, many kids don’t even blink at the idea that their peers are LGBT. When I was in high school, no child would have dared to come out and be honest about his or her sexuality, though I have many who eventually did after high school. My daughter’s best friend since they were 5 is a lesbian. And my daughter is straight. Yup, that’s right. Her bisexual mother who has been involved in a long-term monogamous relationship with a lesbian has raised a heterosexual child. See? Gayness is not catching. So there really is nothing to fear. No peril you need worry about.
Most Americans agree with both the Lawrence v. Texas and Bowers v.Hardwick decisions. Neither invented new rights. My point was that the Supreme Court is reluctant to invent new rights, and it is facetious to argue that such new rights exist. Bowers v. Hardwick was decided on the basis of privacy, not the invention of a right to sodomy. In both decisions the Court was in accord with widely prevailing public opinion and was unwilling to invent new rights or redefine institutions. Even Roe didn’t invent a right to abortion. The decision again turned on privacy rights, and even then put restrictions on those rights. (Even then, Roe launched a culture war that is far from over. A future court could hold that Roe was wrongly decided.) To uphold Judge Walker’s decision will require either inventing a new right (the right to genderless marriage) or redefining an institution (into something genderless). If this right is so fundamental, one wonders why generations of Supreme Court justices never thought of it or if the justices will render all other institutions genderless. I don’t think the Roberts Court will go that far, though I admit it could. The Court is reluctant to get too far ahead of public opinion, and where it may have done so of late, it is on the conservative side of public opinion. The court didn’t invent the right to bear arms; it merely decided to apply it seriously.
My point about the Loving decision (which declared marriage as fundamental to “survival”) is that the redefinition of marriage stands the reasoning of Loving on its head. True, heterosexuals will be able to perpetuate the human race (as only heterosexual coupling can, homosexual couples are not similarly situated in that regard), but those carrying a gay gene cannot pass on the gay gene through gay coupling, only through heterosexual coupling. Racially segregated marriage had the ability to perpetuate humanity, but it restricted an individual’s right to genetic survival in the next generation. This goes to the reason why marriage is a fundamental right: it is the legal vehicle to pass on an individual’s genetic identity, which then survives the individual. What else could the court in the Loving case mean by “survival?” That is a central purpose of marriage, arguably the central purpose. That is why marriage is essential to survival. Homosexual coupling cannot do that, so if marriage is redefined away from being the legal vehicle for genetic survival, the purpose of marriage implicit in Loving is simultaneously redefined. Marriage must be repurposed into something else. If marriage is repurposed, I submit it might not be a fundamental right. That would depend on what the new purpose is.
The majority opinion of the New York Court of Appeals in Hernandez v. Robles (2006) rejected any reliance upon the Loving case as controlling upon the issue of same-sex marriage, holding that the traditional definition of marriage is not a by-product of historic injustice.
Those who agree with the New York Court and the majority of philosophers, judges, representatives, and citizens on this subject are now held in such contempt that their opinions and votes are deemed irrational and irrelevant. Nothing to worry about in this line of judicial reasoning? I think not. Nothing to worry about an institution that predates government is repurposed and redefined? Nothing to worry about as the birth rate continues to fall below the replacement level and society will be constitutionally prohibited for placing value or benefits on couples who can naturally procreate? I think not.
@Heidi
In a post on his blog today, Andrew Sullivan, himself Catholic, writes of a “Catholic conception of marriage [that] is no longer even shared by most Catholics.”
He writes:
An Open Forum piece in the San Francisco Chronicle explains the writer’s discovery that gays’ battle to obtain marriage was a spur to his own decision to marry:
If only the folks at NOM, the Ruth Institute, and those who frequent this blog, could see the damage that they themselves are doing to Marriage (the concept) and marriages (the lived reality) — not only those of same-sex couples and their children, but the extended families of those couples, and even of non-gay couples who now see the efforts to exclude good people as something which marks marriage itself as suspect.
Heidi said: “The judiciary is to protect the constitutional rights of the individual against the arbitrary and discriminatory tyranny of the majority.”
And yet no individual is denied the right to marry based on sexual orientation. Under the man-woman basis of marriage law there is no heterosexual criterion for eligiblity and no homosexual criterion for ineligibility.
You seek imposition of new special treatment of your favored identity group, not protection of the individual’s existing rights.
You assume that the abuse of judicial review is a legitimate means to your desired end. Your argumentation utterly depends on that.
But that is contrary to the principles of good government that are embedded in the Constitution’s text and framework. When you replace that text and framework with the will of the individual judge, with his or her policy preferences, then, the judicial role has been set aside in favor of a legislative role performed in the garb of judges.
Here is a simple way to demonstrate what I mean about your stance. You speak against majorities and yet how are votes counted on the US Supreme Court? Does the minority dictate to the majority? Why?
Heidi said: “By discriminating on the basis of gendered pairings, you are denying that fundamental right to an entire class of people with no legitimate reason for doing so.”
What “entire class”? Men or women? You meant neither.
The SSM campaign’s courtcentric approach has dropped the claim of unjust sex discrimination. Has dropped it for more than a decade now. It has been reduced to a superficial political argument because it failed due to its superficiality as a supposed legal argument.
Even the pro-SSM Massachusetts court could not produce a majority of the court’s justices to support such a claim as the basis for its Goodridge opinion. The vote was 7-1 against it.
Of course, you really meant to say that there is a homosexual class that is denied the right to marry. Trouble is, homosexual persons can and do marry as husband and wife. So you are factually wrong on that score.
And, since the Massachusetts court is much heralded by SSMers, the Goodridge opinion could not must a majority of justices on the court to decided on the basis of unjust sexual orientation discrimination. Sure, the opinion included much hand-waving and a great deal of gaycentric rhetoric, but it fell very short in terms of constitutional argumentation. In fact, that opinion stands as the very sort of abuse of the judicial process that the SSM campaign has relied upon all through its push to impose the SSM merger on society.
It is not unconstitutional to discirminate between marriage and nonmarriage. You, in your arguments, and the SSM campaign in its arguments, has not been able to justify discrimianting between SSM and the rest of nonmarriage.
Walker failed. All pro-SSM judges have failed likewise. So it is no surprise that you also fail to distinguish between SSM and nonmarriage such that the law can justly discriminate between SSM and nonmarriage.
Such failures are of a social policy kind, really, and ought not to even be entertained as fodder for judicial activism.
Readers will note that the litigants in the anti-8 case in federal court failed to make their legal case that the marriage law in California is unconstitutional. Instead they argued for a policy preference and Walker agreed to that preference.
The pro-8 litigants made a strong constitutional case that was left unaddressed, substantively, by Walker in his document endorsing the SSM policy preference.
Jenn said: “it doesn’t take marriage to make babies”
It doesn’t take a license and special status for lesbians or gay men to engage in same-sex sexualized behavior.
So what was your point, again?
Right. You were going to explain how such behavior would be mandatory for those who’d show-up for a license to SSM. No?
So what was your point, again?
That there is something of such great societal significance to whatever an all-male or an all-female arrangement might do sexually, even without a law mandating it, that SSM must be seen as a fundamental constitutional right. No?
If you had a point you would have made it plainly.
Jenn, quoting (apparently unknowingly) from a US Supreme Court decision: “Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated.”
The opposite-sexed basis for sexual consummation of the marital bond is foreign to all one-sexed arrangements. That sexual basis is also the sexual basis for the annulment provisions, adultery-divorce, and most prominently also the marital presumption of paternity.
The Lovings would have been astonished to learn that the US Supreme Court stood against any of that and instead favored abolishing this universal sexual basis of marriage from the meaning accorded the fundamental right to marry.
Too often SSMers can not make sense of the law and the precedents in constitutional jurisprudence — because they are looking at everything through the thick and distoriting lense of gay identity politics.
Jenn said: “the personal choice of who to marry is a fundamental right that cannot be abridged on the basis of arbitrary discrimination”
1. What about marriage makes the right to marry a fundamental right? Please be precise with your claims about what is and is not constitution-based. Thanks.
2. What do you mean by arbitrary discrimination? A) Please justify discriminating between marriage and nonmarriage. B) Please add justification for discriminating between SSM and nonmarriage that does not contradict your answr to A. Thanks.
3. In what way do you feel that the man-woman basis of marriage has “abridged” the fundamental right to marry? Please explain how this is different for related people or for previously married people or for underaged aged people.
I realize that SSMers run scared from these types of questions, especially #3, however, it is time for you to face the music. You know, living up to your own stated standards of argumentation. Given your certitude, you really should have well-reasoned answers at the ready.
Frankly, in terms of constitutional arguments, it matters not one whit what a lesbian might feel about marrying a man.
If she’d rather form a one-sexed arrangement, she is at liberty to do so — lesbian or not in fact. That some would like to have laws that treat all one-sexed arrangements as the equivalent of the conjugal relationship is also irrelevant to the constitutional quesition. Likewise it matters not one whit what the policy preferences of a panel of judges might amount to.
The Constitution does not demand that society stop discriminating between marriage and nonmarriage. SSM argumentation makes such a demand. Satisfying such a demand means the rejection of what makes marriage a fundamental right in constitutional jurisprudence.
Just because some people reject marriage, due to their personalized feelings of sexual attraction, does not mean that society must follow suite.
I think that SSMers truly believe that hyper-personalization is their best foot forward; and yet at the very same time they go on and on about group rights — as in their own assertion of the supremacy of gaycentric identity politics.
But both of these big and prominent themes in SSM argumentation really do not prove the claim that the man-woman basis of marriage law is unconstitutional. When SSMers harp about these things they are not making a constitutional nor a legal argument. They are voicing what is known as special pleading.
Marvin, if you think a definition is by definition “questing begging”, then, you likewise reject the SSM campaign’s definition of marriage. Right?
No?
Look, the reason the law requires the participation of both sexes is because the law recognizes the social institution of marriage. That institution is foundational to civilization. Howso? The core meaning of marriage, as a social institution, is the combination of 1) sex integation and 2) provision for responsible procreation. These are essentials — universals — even though there are also many near-universal and many variable features of marriage across the historical and anthropoligical records. This is what makes marriage, marriage.
And that does not merely spring from someone arbitrarily writing down a definition. It arises from the two-sexed nature of humankind, from the opposite-sexed nature of human procreation, and the from the both-sexed nature of human community. Societies respond to these givens — one way or another — and our civilization has long responded by showing preference for the union of husband and wife, as a sexual and as a public type of relationship.
The same can not be said of the SSM idea which remains a marginal practice (under whatever name — including ‘same-sex householding’ as per Census) even within the adult homosexual population. The SSM idea has no essential meaning that can distinguish it from the rest of nonmarriage. But it does have at its core a great emphasis on gayness and, in particular, on gay identity politics.
That is not the same as an exmphasis on sexual orientation or on sexual romance. Far from it, in fact.
Readers will note that the sky has not fallen anywhere that marriage has been affirmed as the union of husband and wife. And that sky has been hanging in there for millennia. Amazing is it not?
Heidi said: Marriage to me is something so much more than mere opposing body parts.”
Complementary, Heidi, not opposing.
On the other hand, for you to go on about sexual orientation as you do, as a basis for SSM, it is quite amusing to read how you are against giving pride of place to body parts.
The rest of your personal view of marriage is just that, a personal view, and it does not marit the special status that you seek for SSM. Indeed, it does not merit special status for marriage.
But it does fit the nonmarriage relationship types that fill the wide ranging nonmarriage category — a category populated by millions, not merely thousands, of people — most of whom are not members in the gay identity group.
Yet you have no good reason to exclude those arrangements from your own personal definition of the type of relationship and arrangement you have in mind. That, Heidi, is not so amusing.
You are defeating your own argument and destroying the basis for your supposed complaint against the marriage law.
Marvin, Sullivan has long abandoned Catholic teaching on marriage. He has long abandoned the irreligious basis for the special place of marriage in our society. That he claims that the rest of society has likewise abandoned these things is not really a strong argument for the special place of SSM that Sullivan hopes to see imposed on all of society.
Making marriage mean less and less is a self-defeating argument for an SSMer to propose. Yet SSMers do that every day to buttrress an ideology that is analogous with the racialist identity politics of the anti-miscegenation system, long abandoned by society.
Given Heidi’s fulsome endorsement of the poor legal reasoning of Judge Walker’s “opinion”, we now have confirmation that she is not really basing her pro-SSM views and comments on constitutional analysis.
The endgaming is obvious when she wonders, without apparent self-awareness of the irony: “What part of the role of judges do you not understand?”
Heidi, what part do YOU understand? Please tell us what limits the judicial role, if anything? Walker did not refrain himself based on the text and framework of the Constitution; nor did he restrict himself to the role of neutral arbiter. Reconcile all of that with your personal view of what limits the judicial role, if anything.
Predictably, Heidi has not explained her view of the limits on the judicial role.
12 days later and Heidi has not acknoweldged limits on the judicial role. Rule of law does not mean rule of men via the abuse of judicial review.