Ruth Institute Blog

I’m not a fan of podcasts, and wish you (among others) would post transcripts if you have something important to share.

Don’t religious people learn what their respective faiths require in terms of marriage, sexuality and divorce in church? Why would it be necessary to post religious issues or requirements here?

Sean,

Are you saying religious views should be kept off the internet or that Dr J. doesn’t have the right to determine what is relevant to her own blog?

It just seems redundant to whatever people learn from their churches, mosques and synagogues. I’d rather read about the legal reasons supporting marriage discrimination than the same old tired, “because God says so!” stuff.

Sean,

As far as I can tell, this blog is about both the secular and religious aspects of marriage, and not merely about a narrow legalistic view. One of Dr. J.’s points is that marriage, as an institution, predates the modern state, and, of course, Catholicism, which considers marriage a sacrament, predates modern secular states as well. You may have no interest in theology, religion, or the history of religion, but there are billions of people around the world whose interests and world view are different that yours.

It would be difficult to understand Western Civilization without reference to Christianity, just as it would be difficult to understand the Middle East without reference to Islam and Judaism as well as Christianity or to understand China without reference to Confucius or India without reference to Hinduism. If you are looking for a blog that limits itself legal issues, perhaps you should look elsewhere or get your own blog.

As for legal issues, the controlling federal precedent is Baker v. Nelson, and if Perry v. Schwarzenegger or a similar case isn’t appealed to the Supreme Court, it will continue to be the controlling federal precedent. Baker v. Nelson did not find that the traditional definition of marriage constituted discrimination under due process, the 14th amendment or the 9th amendment.

It would be good if this blog, or, preferably, the main Ruth Institute site, could assemble the various facts and – most importantly – backup sources supporting the historical view and social importance of marriage. Too often, debates descend into “he said, she said” arguments simply because the sources and information supporting the pro-marriage side are so widely scattered.

Paul of Alexandria, that’s my point about the whole religion-based notion of marriage. It’s hearsay and opinion. This is really a legal issue: whether society can discriminate against same-sex couples in awarding marriage licenses and the rights and privileges that go with marriage. Religious beliefs are personal and for individual consumption only. Therefore, they are irrelevant here.

Sean,

Religious beliefs would be irrelevant here if (1) this blog were only concerned about legal issues, which it is not, and if (2) religion was an institution for solitaries only with no societal component, which it is not.

Religion, unlike the Playboy philosophy of sex, is not limited to two consenting adults. Religion, besides connecting man and God, is also designed to connect people to one another. Ethics is therefore a major consideration in all major religions. Confucianism is almost entirely about ethics. You can wish religion away, if you like, but you have to then ignore the world as it is.

If you want to banish religion from the discussion, I suggest you find another blog or write your own.

You never replied to my points that marriage predates the state or my point about the controlling federal precedent which declares that the traditional definition of marriage is not discrimination, contrary to your assertion.

Ok, so this is really a religion-based website. Now I know. The practice of religion, any religion, is an entirely individual matter. I can’t impose my religious beliefs or practices on you. To suggest otherwise tells me you live in the Middle Ages or something.

What difference does it make how old marriage is? No one’s challenging claims of how long marriage has been around, but rather whether the state can constitutionally give marriage licenses to straight people but not to gay people.

Now that homosexuality is no longer illegal, and same-sex marriage is legal in some states, Baker no longer controls. Circumstances changed. Similarly, as women gained more rights, and are almost equal to men legally, marriage rules discarded coverture, whereby a women loses legal rights once she marries.

I can’t find anything on this website advocating that divorce should be illegal in the United States. If this website’s purpose is to create marriage that is “one man, one woman, for life” then there should be at least a policy statement about making divorce illegal, not just same-sex marriage.

Leo,

Baker v. Nelson was decided in 1972, before Lawrence v. Texas and Romer v. Evans. The majority opinion AND Justice Scalia’s dissent in Lawrence both call into question the continuing viability of Baker. Moreover, the Court’s decision in Romer makes plain that a majority of citizens may not vote to deprive LGBT persons of a fundamental right when the reason for doing so is animus against that particular class. It should be noted that the Supreme Court summarily dismissed the appeal in Baker with one sentence, and did not provide any reasoned decision for its action.

Please also keep in mind that the Court does from time to time overrule prior decisions that it acknowledges were wrongly decided. The best example of this is Brown v. Board of Education, when the Court overruled Plessy v. Ferguson, which held that segregation did not violate the Constitution. Plessy was binding precedent in this country for almost sixty years. Interestingly, the Brown Court relied on evidence from the social sciences, including the research of two psychologists on the damaging effects of segregation on children of color. Is any of this sounding familiar yet? It should. Given all that has happened in forty years since Baker was decided, I wouldn’t be clinging to it as mandatory precedent any longer if I were you. It was decided in a climate of severe anti-gay oppression and policy, including a time when gays and lesbians could be imprisoned for private sexual conduct. Those times have passed, and most people understand them as a relic of a belief system that is embarrassing in a country that prides itself for its emphasis on individual liberty and justice for all.

Finally, while I enjoy engaging in the religious debate because I believe that Christ would never support legal discrimination and that LGBT are also children of God entitled to full civil rights, Sean is right that religious arguments really have no relevance to the constitutional questions. It’s that pesky First Amendment that stands in the way of this country being ruled by theocrats.

Heidi, amusingly you, in your comment, said more about the controlling precedent that Walker had the courage to venture in his offered legal reasoning.

The reason that religion is important to the marriage discussion is that SSMers seek to set Government against religion and religious people.

For them the only good religion is the kind that bows down to gay identity politics first and foremost.

Regarding Heidi’s remarks about the precedents in constitutional jurisprudence:

1. Walker did not bring up Baker and so, for him, it was not “in question”. He has no excuse not to deal with it, one way or another, even in light of Heidi’s pro-SSM viewpoint. When something is in question, it gets dealt with forthrightly. Or not at all, in Walker’s case.

2. Lawrence was about private behavior not about the public status accorded marriage and certainly not about a licensing scheme. If SSMers want to demand public status for a private type of arrangement, fine, but that deeply undermines Heidi’s view of the precedents.

3. Meanwhile, Baker is marriage specific; it is 14th Amendment specific.

4. To identify something as a “fundamental right”, one must first establish the essentials of that something. Nothing offered by SSMers does this. Then one must look to how that something is deeply rooted; SSM is aimed at uprooting marriage from its essentials. And in so doing it shows that the SSM idea is part of nonmarriage and so has no claim to equating itself with the fundamental right to marry.

5. The CA marriage amendment does not deprive the right to marry on the basis of membership in the LGBT community. There is no LGBT criterion for ineligilbity. There is no sexual orientation criterion either. One must read into the law and the CA constitution something that is definitely not there; and then, absurdly, rely on that nonexistent criterion to demand a license for on the basis of that very thing.

6. With or without a long written opinon, the court in Baker did deal with the very same claims that the anti-8 litigators based their case on. Baker remains controlling precedent.

7. The Brown case is a good example of the US Supreme Court dealing with the binding prededent that it had set, and which federal courts adhered to, for decades. No district judge set precedent for the US Supreme Court. So this actually stands against what Walker did.

8. The US Supreme Court in Brown dealt with its binding precedent, contrary to district judge Walker’s example of ignoring binding precedent. This also stands against what Walker did.

9. The social scientific evidence used in Brown was preliminary and turned out to be very unreliable. That is closely analagous with the social scientific evidence submitted by the anti-8 litigants.

10. The basis for marriage being a fundamental right in constitutional jurisprudence has not changed since Baker. It existed long before marriage was deemed such a right by the judiciary. That basis has remained unchanged for millennia. And that is largely why Baker was summarily decided — in light of the 14th Amendment. Note: this is not relying on tradition alone; the basis has existed and continues to exist regardless of the politics of identity newly asserted by the gay identity group.

11. Heidi’s concluding paragraph is as dogmatic as Walker’s absurd commentary about religion and morality. The grreat religions and moral systems affirm the special reason for the special status of the social institution of marriage in our society. That this can be, and is, expressed in secular language does not mean that this special reason, and the religious and moral affirmation of it, is illegitimate when expressed in religious terms.

The SSM side bangs the drum about bigotry, gay this and gay that, and a great deal of emotivism all in the cause of asserting what SSMers insist is a moral and axiomatic belief that society must endorse and act upon.

When Walker, and SSMers, denounce morality as a legitimate basis for lawmaking, they expose the hypocrisy in SSM argumentation. They demand that society treat the marriage idea as a bigoted idea on par with racism. Their devotion to the primacy of gay identity politics is far more dogmatic and irrational than anything the Ruth Institute has expressed in its religious affirmation of the core meaning nof marriage. Indeed, the SSM campaign emphasizes little else but gayness whereas the Ruth Institute emphasizes the societal significance of the core of marriage for all of society — regardless of religious beliefs, regardless of identity group, regardless of all that stuff.

In this way the public discourse encouraged by the Ruth Institute is more pluralistic and far more tethered to why marriage is such a big deal in the first place.

Actually, Chairm, it is unlikely that Baker is very powerful as “controlling precedent.” Too much has happened in the 40 years when that summary judgment was rendered, and in fact the issue considered in Baker, mainly, a state government that didn’t want to issue a marriage license to a same-sex couple differs quite a bit from a state government that DOES want to issue a marriage license to a same-sex couple.

“Perry” differs from “Baker” because a slim majority of Californians who voted for Prop 8 want to deny marriage rights to gay couples, not the state. In fact, the state WAS issuing marriage licenses before religious groups went ballistic and started to campaign against marriage equality by mounting dishonest propaganda campaigns, and ultimately, getting a proposition on the ballot.

Marriage has been defined as a “fundamental right” by the US Supreme Court. Now that marriage can include opposite-sex couples and same-sex couples, now that Massachusetts and several other states changed their discriminatory marriage statutes, it will be difficult for the Supreme Court to backtrack and say, well, marriage is on a fundamental right for opposite-sex couples. On what could it base such an assertion?

Marriage can’t possibly be defined or constrained by religious beliefs: too many Atheists get married and they certainly don’t think they’re participating in a religious ritual or act. Ironically, the more religious folks insist that religious notions of what marriage is or must be, be adhered to, the more likely courts are to strike down marriage discrimination as violating separation of church and state.

Well, Sean, maybe you should have advised Walker to deal with the binding precedent. Can you justify his ignoring it?

The man-woman basis of marriage is compatable with athiesm. Besides, irreligious voters provided a good portion of the margin of victory for the CA marriage amendment.

That basis is not a religious basis, contrary to your skewed view of lawmaking.

I think I did justify his ignoring it: the circumstances under which Baker was made have changed drastically: states are now marrying same-sex couples, homosexual sex is perfectly legal, same-sex couples raising children (who would benefit greatly if their parents could marry) is commonplace, several state courts have struck down discriminatory marriage laws based on Equal Protection doctrine, etc.

Think of it this way: if the animus and religious reasons for prohibiting same-sex marriage were removed, Prop 8 would never have passed.

As laughable as it seems to us today, Chairm, in 1971, when Baker was decided, homosexuality was considered a mental illness by the medical community! Yes, things have changed radically since then. “Baker’s” influence now is minimal.

Sean, given your attempted justification for ignoring the legal precedents (Baker is not the only one) set by the courts above Walker’s district court level, you are asked, again, to justify why Walker ignored even your offered reasons for ignoring what you say he could put aside.

Sure, you are willing to do the judge’s work for him, after the fact, rather than stand on how he got from A to B in his own offered reasoning. He did not deign to touch what you’ve attempted to sweep away with so much effort.

Chairm, he said he ignored Baker because it was decided in a time and circumstance substantially different from the time and circumstance of Perry. When Baker was decided:

1. Homosexuality was considered to be a mental illness. We know now that homosexuality is completely normal.
2. Homosexual sex was illegal. It is now legal.
3. No state had laws against same-sex marriage. Now they do. At the time of Baker, same-sex marriage was avoided for lack of interest, and as a practice. Now, in some states, it is specifically illegally, creating the necessary circumstance to challenge its constitutionality.
4. No state authorized same-sex marriage. Now, several do, as well as the nation’s capital.

See? The world of Baker is world’s away from today, and the Perry case.

@Sean
“We know now that homosexuality is completely normal.”

Sean, could you tell us what connotation of ‘normal’ you are referring to here? Would you be talking about what is statistically normal or functionally normal?