I'm sure you've all heard by now that the California Supreme Court has struck down the California law that defines marriage as between one man and one woman. I doubt that many of you (us) have read the finding. (It's 172 pages long.) A brief examination of the document, however, is worth the effort. Here's the basic summary of the finding of the 4 who voted to overturn the law: The right to marriage is protected by the Constitution. No one should be prevented from engaging in the tradition of marriage.
That's basically it. They needed 172 pages, of course, because this is a big one. I found it interesting that 2 of the 3 dissenters to the majority opinion actually wanted to vote for it but believed they could not. Why? Well, their personal feelings were that they thought homosexuals should be allowed to be married, but their legal requirements were to find what the law says, and the law says nothing of the kind. One of these dissenters, Justice Carol Corrigan, wrote about the fact that it is not the job of the Supreme Court to pass laws, but to examine their validity. This ruling, she was sure, was a violation of that job. In other words, a Supreme Court Justice in California accused the court of judicial legislation -- making laws. And why did they insist on 30 days? Californians are set to vote on a Constitutional Amendment defining marriage. Couldn't they wait? Seems like an agenda to me.
All sides were careful to point out that this shouldn't lead to polygamy or incestuous marriages, but they were completely devoid of offering any reason why. Their only reason was that it's not likely that people would begin to feel that polygamy was acceptable. Why? Wouldn't the same thing have been said 20 years ago about allowing marriage of homosexuals?
I did find myself torn and confused. The basic position they held was two fold: 1) The Constitution protects the right of marriage, and 2) No one should be prevented from engaging in the tradition of marriage. My confusion came from the first one. I've read the U.S. Constitution and, for the life of me, I couldn't find anything protecting the right of marriage. I admit I haven't read the California Constitution, but I seriously doubt you'll find anything in that one about the right of marriage. So ... on what do they base the premise? I was torn on the second point. On one hand -- and let me say this with emphasis -- I agree that no one should be prevented from engaging in the tradition of marriage. I agree 100%. So, why was I torn? Well, the opinion itself defines "the tradition of marriage" with these words: "the long-standing and traditional definition of marriage as a union between a man and a woman." Now, if the basis is "the tradition of marriage" and that tradition is defined as "between a man and a woman," then where exactly do we fit in "a man and a man" or "a woman and a woman"? Putting it another way, it is hardly possible to think of a wedding ceremony that doesn't end with, "I now pronounce you husband and wife." It's tradition. So how does that work when there are two husbands or two wives? It doesn't! It doesn't fit the "tradition of marriage." And I repeat now for emphasis, that was the phrase that the majority opinion used.
We Christians tend to make this an argument of biblical proportions, so to speak. "God doesn't like it; we shouldn't allow it." Fine. I agree that God doesn't like it. But that doesn't hold much water with the rest of the folks who couldn't much care what God likes or dislikes. So, Christians, is that all you got? How about this? Society must regulate the things that affect society and ought not regulate the things that do not. So, I think we can all agree that murder, for instance, is bad for society. Theft is bad for society. Putting unqualified drivers on the road is bad for society. So we regulate these things. On the other hand, whether or not you have a nice vacation, for instance, doesn't actually impact society, so that kind of thing isn't regulated. They don't tell you to go to church or not. They don't tell you what to eat. There are a lot of things that are not regulated because they either do not benefit society nor do they harm society. So we come to marriage. Marriage has traditionally been regulated by society. Why? Because marriage provides an actual benefit to society. It provides, in fact, a perpetuation of society. So marriage is regulated and its negative side, divorce, is regulated. Now I ask you, knowing that "the tradition of marriage" (one man and one woman forming a family) benefits society, of what benefit is it to legally modify the "the long-standing and traditional definition of marriage"? A married man and woman provide offspring and a stable environment in which to raise them. It's a self-perpetuating system that keeps society alive. What is the benefit to society that is derived from allowing this change in definition to include homosexuals?
I object on moral grounds, of course, but my moral grounds don't offer a basis for everyone. I object on biblical grounds, obviously, but my biblical view doesn't offer a basis for everyone. When the court, however, holds that the tradition of marriage is "between one man and one woman" and argues that everyone should be allowed to engage in that tradition, I don't need my moral or religious grounds to object. I simply recognize that ... that makes no sense at all.
10 comments:
Minor points for informative purposes only.
They needed 172 pages because 11 of those pages listed all the lawyers involved. In very small print. He He He.
The most interesting question raised by the dissenting opinion is whether the opinion is, in essence, a circular argument. Did it first re-define marriage, and then claim the law as it stood violated the (new) definition of marriage?
It was not devoid of reasons why the opinion would not apply to polygamy and incest. Because the state maintained a substantial legal interest to prohibit such marriages, whereas the recent (past decade) enactment of domestic partnership law giving gay couples all the rights of marriage in everything but name alone demonstrated the state did NOT have a substantial legal interest to prohibit such marriages in light of the legislation. It was buried in shorthand legalese in the footnote of pages 79-80.
The Courts (both U.S. Supreme and California) have ruled there is a “Right of Privacy” in their respective constitutions, and subsequent cases establish the precedent the “Right of Marriage” is part of the Right of Privacy. This goes back to the debate between Strict Constructionist and living, breathing document.
(Although this is further complicated a bit by the fact California provided its citizens with the “Right of Privacy” as stated by the Supreme Court, understanding it included the right of marriage. If the “right of privacy” did not, then would California have specifically delineated “Right of Marriage” to include it?)
As pointed out in the opinion, (which dealt quite well, I thought, with anticipated public reaction such as whether it was legislating, or the slippery slope), simply because it is “tradition” does not make it correct. Banning of interracial marriage was tradition from the inception of California as a State to 1948. Yet the Supreme Court in that instance struck down the law as unconstitutional. Would we argue they were incorrect because of tradition? Of course not!
Basically the court said traditions change.
Probably the biggest hurdle (in my opinion) for those who wanted the ban was the fact the California legislature had given “domestic partnership” every single right/benefit (as near as I can tell) of married couples ‘cept the ability to marry. Sure sounds like “separate but equal”—something we abhor, of course.
Yeah, I saw that there were 11 pages of lawyers. I don't know ... if you ask me, there is something seriously wrong with 11 pages of lawyers. ;)
When I said it was devoid of reasons, I meant it was devoid of any substantial reasons. I'm still holding to that. :)
Perhaps I lean more toward the "Strict" side, but I haven't yet figured out where "right of privacy" comes from, so connecting it to "right of marriage" seems like a REAL stretch to me.
I know that this connection between "interracial marriage" and "gay marriage" is a popular one (with a particular side of the argument), I still think it's a nonsense one. The "traditional definition of marriage" nowhere that I've ever seen anywhere includes "only of the same race". It's a stretch. It may have been the way it was, but I've never seen anyone ever offer it as part of the definition. Further, there is a radical difference between race and sexual preference. Finally, while they did deal with the "slippery slope" fear ... I think they also felt the weight of it themselves. Truly, without trying to raise unnecessary arguments or fears, I can't imagine on what basis anyone could now argue that polygamy or incest should be disallowed. Especially polygamy. Seems like the only possible way to disallow it is "we don't like it", a purely subjective basis. (And, as I pointed out, the dissenting opinion accused the other side of legislating from the bench.)
Dagoods: "Basically the court said traditions change."
More correctly, I suppose, "Definitions change." Traditions are irrelevant at this point. Morality was already irrelevant. And I am still waiting for someone to tell me what possible reason there would be for the State to regulate marriage if it has no real meaning. That is, if we are going to redefine it as "whoever wants some sort of, I don't know, commitment or something, you know, for at least a limited time because, hopefully (but not necessarily), they love each other", how does that affect society and why should the State regulate it? Do what you want! Why should the State be involved?
Courts aren’t quite as technically married (excuse the pun) to definitions. We are married to the law. And the law certainly included (whether we call it “tradition” or “definition”—it cares not) prohibitions against interracial marriages for a long, long time. Since the founding of this country and the original 13 colonies to the early 20th century.
Yet times changed. To the point we look back and say, “Those laws, even though they were in place for 100’s of years, are wrong. Time to change them.” The comparison, when it comes to the law, is valid. (Laws are designed to change with cultural change.)
[Oh, there may be a “radical” difference between race and sexual orientation—I’ll leave that to you. But there is a remarkable similarity as to how the law has treated those two situations when it comes to marriage.]
You may not have figured out where our “Right to Privacy” comes from, but you enjoy it if you have ever used a contraception device. Or raised children.
Stan: Truly, without trying to raise unnecessary arguments or fears, I can't imagine on what basis anyone could now argue that polygamy or incest should be disallowed.
Since this is in a legal opinion, one would have to do the legal research as to the legal reasons the State has a substantial interest in such marriages. It is not “any” basis, but rather a legal one.
The reason the State is involved with marriage is that marriage provides certain legal rights. Such as inheritance, parenting, medical decisions, availability of records, land ownership, contracts, debt responsibility, and citizenship. As well as contracted rights, such as health benefits, memberships, etc. The State is involved because it monitors these things which are prolific throughout our society.
I do have a question for you. What is the harm if Bob and Larry get married in California?
Raising children requires the government to grant me a right to privacy? I wonder what all those people did in all those nations where no such right was granted all those years? Or could it be that we have a right to privacy apart from any Constitutional statement?
"The comparison, when it comes to the law, is valid. (Laws are designed to change with cultural change.)"
I guess that just scares me to no end. So, when the culture decides that there should be open hunting season on Christians, that would be a good thing? "Hey, Bob, bagged your limit this season yet?" "Yeah, and two extra just for fun." I like to think that laws are designed to change when we find out there is a problem with them, not merely because culture changes ... and not simply by redefining terms.
"The reason the State is involved with marriage is that marriage provides certain legal rights."
I think that's a bit turned around. I think the reason that the State is involved with marriage is because of its importance to society. Because of its importance to society, the State confers certain legal rights. If, on the other hand, this isn't the case, then perhaps it's time for the State to get its paws out of the marriage regulation business. Stay away from all those medical, parenting, ownership, or inheritance issues. It has nothing to do with them. They have no need to stick their noses in issues that do not involve them. In other words, if, as I claim, marriage is an issue that affects society, the State ought to be involved. If it's not, then they ought not.
"What is the harm if Bob and Larry get married in California?"
Reasonable question, I guess. I have multiple responses in my head. Who are you asking ... Stan the citizen or Stan the Christian? Stan the Christian would say that the Designer of Humans says that's bad for people, so allowing it would be bad for people. Stan the citizen would say that defining a union between Bob and Larry as "marriage" completely redefines marriage and shoots a hole in tradition. What do I have left to stand on? My "marriage" isn't what it used to be. Sure, my relationship with my wife will be the same, but it is no longer the same thing in the eyes of the law. Further, if we can't use tradition and we can't use religion and we can't use definition to come to conclusions, then when Bob and Larry unite and we call it "marriage", we terminate any solid ground on which to stand. I really do see it as a slippery slope in a lot of ways.
No, raising children or using contraception does not require Right to Privacy. However, as American citizens, we enjoy the enumerated ability to do so, without fear of involvement by the government (absent a substantial compelling reason) and protection by courts from such involvement.
I presume you are an American citizen from your location. You have the Right to Privacy in these choices. Whether you choose to appreciate it is up to you. The majority of humans have not had such a privilege.
Stan: I guess that just scares me to no end. So, when the culture decides that there should be open hunting season on Christians, that would be a good thing?
It IS pretty scary, isn’t it? To think what a society would be like if we solely lived by majority rule? Imagine what would happen if, in 20-30 years, non-Christians became the majority and passed a law (simply by virtue of being a majority) for “open season” on Christians!
Perhaps, just perhaps, if for a moment we can put ourselves in a position in which we were the minority on an issue, and understood how scary it is to live in such a society, we can start to appreciate the American system of emphasis on protecting those in minority status.
Can you do that, Stan? Can you (by your example) begin to empathize with those who do not have a majority and will never have a majority, and how to protect their rights and privileges? How to protect them under the law?
Can you imagine not being allowed to marry the person you want? Simply because they are of a different race? Or were divorced? Or of a different religion?
Because our forefathers COULD imagine such things, they instituted checks and balances, legislatures, courts, and constitutions to prevent majority opinion rule.
Stan: I like to think that laws are designed to change when we find out there is a problem with them, not merely because culture changes ... and not simply by redefining terms.
Again, the law is not wed to definitions. I know you would like to see this in terms of a “change of definition” as if that is a bad thing, but we simply do not look at it that way. We see definitions as malleable. To be used TO change the law.
In Michigan we “re-defined” Drunk Driving to no longer be Blood Alcohol of .10, but now .08. We “re-defined” the age of majority to 18. We “re-define” the age of consent, the cost of filing a complaint, the meaning of the term “contract,” etc.
Some of those may be because the law had a problem. Most are because of cultural changes. We can argue the philosophical basis of laws on the internet for ever—but practically they do modify based upon culture.
Stan: Stan the Christian would say that the Designer of Humans says that's bad for people, so allowing it would be bad for people.
Gays marrying is “bad for people”? A bit indistinct. Aren’t they sinning already? Is whether they marry going to increase/decrease their sin a bit? Don’t other sinners marry? Does your God-belief hold that others who sin will cause harm to you personally?
Then don’t you have a whole list of other laws you should be pushing to pass? Like keeping divorcees from marrying except in certain circumstances? And that Christians can’s sue other Christians? (1 Cor. 6) And that women can’t wear gold and pearls?
Does the fact my wife wears a gold ring in violation of 1 Tim. 2:9 make it “bad for people”?
Does your God-belief recognize that sin will happen regardless?
Stan: My "marriage" isn't what it used to be. Sure, my relationship with my wife will be the same, but it is no longer the same thing in the eyes of the law.
How has the law considered your marriage differently? Before this week, the law considered you married, with all the rights and detriments attached with that legal significance. Today, the law considers you…well…uh….married. With the same legal rights and detriments.
And, as you indicate, there is no personal harm to you, because your marriage is NOT based upon what some law in California does/does not say. It is based upon your relationship with your wife.
Did you think the law cheapened your marriage when Massachusetts allowed gays to marry? Did you feel a huge surge in The Force, reducing the value of your marriage when Canada allowed gays to marry? What is the locale/distance/society by which you measure the value of your marriage?
Stan: Further, if we can't use tradition and we can't use religion and we can't use definition to come to conclusions, then when Bob and Larry unite and we call it "marriage", we terminate any solid ground on which to stand.
Ah, but whose “tradition?” Whose “religion?” Whose “definition?” Using the same logic, we should have continued to allow slavery in the south. It was their tradition, religion and definition. We should have allowed bigamy in Utah. Tradition. Religion. Definition. We should continue to allow Jim Crowe laws in many Southern States. It is their Tradition. Religion. Definition.
Honestly, Stan (and this will come across more rude than I mean it to). These reasons sound weak. Your God doesn’t like sin, sure. But he is silent regarding letting sinners marry. Your marriage is cheapened by allowing others to marry? You think it violates some definition?
I am still not seeing the personal harm that comes to you Stan for letting Bob and Larry marry.
Let’s try this one on, to wrap the whole thing up. A few years ago, I became a minority (for the first time in my life.) An atheist.
Are you aware there are State Constitutions, such as Maryland, Massachusetts, North Carolina, South Carolina and Texas which state—right in their Constitution, because I do not hold to a Supreme Being I cannot hold office in the state?
Technically (albeit I doubt these are enforced) I could not be elected president of my local bar association. Nor dog catcher for my township. Because I am an atheist.
Now, this is part of their Tradition. Definition. And Religion. If we attempted to pass a law to change it—it would be shot down. The majority continues to believe that way. It is what the culture wants.
Do you think it is the right law to have? Or do you think laws should protect the rights of minorities, regardless of tradition, religion, definition and majority determination?
(P.S. Sorry for the long comment, but I enjoy discussing with you as well. And this area (the law) I am more passionate about than theistic belief. The combination makes me talkative. *grin*)
You know, I think that if we hadn't allowed divorce to become so prolific in our society, we wouldn't even be having this conversation. Like you said, marriage no longer has any meaning. It has become a legal union to cover legal matters. It has nothing to do with raising children, or making families. So, if marriage is a union for legal reasons, any marriage should be allowed...I do believe there are ways to make those same legal connections without "marriage". They may be more difficult to receive, but they're there. 'Tis a shame that society has allowed the devaluing of marriage from a union granted by God between a man and a woman for the purpose of making families, to a civil union for legal reasons.
Dagoods,
I find it interesting that it appears that from you perspective the only valid consideration I should have in these matters is "How does it affect me?" It appears that "How does it affect others?" should not be of any concern to me at all.
Does it hurt me if Bob and Larry are hitched? Only in that it devalues what was once "marriage". Does it hurt Bob and Larry? Yes. In my view, of course, but, yes. It tells Bob and Larry that it's okay. It tells them that there is no difference between straight and gay. It tells them that marriage no longer has the meaning it once had. It perpetuates their original problem by giving them confirmation. I think that's bad for them. But, you're right, it won't hurt me personally. So ... I shouldn't care?
So, the law is not based on words and how they are defined and it is not based on religion and it is not based on morality. So ... what basis do you offer? Science, it is said, is self-correcting. The Law, it appears, is without any such hope. It appears that it is simply based on how we feel ... today ... which, of course, will change tomorrow. What do you recommend?
It's interesting on your question about whether or not I think they are the right laws. Well, what I think isn't that interesting. However, over the last several months I've heard multiple times as media personalities discussed things like a Mormon in office that they didn't mind a religious person, but an atheist was a terrifying thought. These weren't the religious right. Most of them were irreligious. But they all agreed that they thought that an atheist in office had no consistent moral compass and, therefore, was a threat. Not my idea. I just thought it was interesting in light of your question.
No, Stan—I don’t think it is the “only valid consideration.” Societies are made up of groups of people. Groups of “you.” Since it is impossible for me to talk to ALL of the “you” in society—I figured I would start with the person I was discussing. The “Stan you.”
Laws develop by power. It may be dictatorial, or authoritarian or democratic. But, in essence, the laws of America ARE what we determine to be appropriate for today. And can change tomorrow.
I guess I am still missing the connection between marriage and sin. I get why (in interpreting your God-belief) you would be against a homosexual act. But whether homosexuals marry or do not makes no difference in this act. It is happening regardless.
I also struggle with the responsibility of a Christian to pass laws to prevent sinners from sinning. Even as a Christian I never found that focus within Jesus’ words, nor the epistles. In fact, the focus was far greater that sinners would sin regardless of what Christians did, and Christians should focus on their own not-sinning.
And society has always struggled with how to pass laws to prevent others from harming themselves when they are not harming me. We allow people to eat food high in fat (which is harmful to them) We allow them to smoke and drink alcohol. But marijuana? Oh, no—that is harmful to them.
To whose shame or honor is it that we cannot tell the difference between those without a moral compass (non-theists) and those with?
"In essence, the laws of America ARE what we determine to be appropriate for today."
I don't think that's the way it used to be in this country, nor can I imagine that this is a good thing. But ... that's just me, isn't it? ;)
"I guess I am still missing the connection between marriage and sin."
I'm not saying that the marriage is the sin. I'm saying that when we approve marriage, specifically in this situation, we approve the sin. We give our societal "OK!" We deny any possibility that they might be immoral. We give our societal stamp of approval.
"I also struggle with the responsibility of a Christian to pass laws to prevent sinners from sinning."
Dagoods, a truer word was never spoken. I have a huge struggle with it myself. I don't believe we should be a theocracy. I don't even believe in a theonomy. I'm not sure myself how far we should go in passing laws that prevent sinners from sinning. There are pros and cons. (I mean, you have to know that to Christianity a person who is prevented from sinning is no less a sinner.) So I'm at a loss myself.
Here's my experience. When I was 18 I decided to toss all this religious nonsense out and go out and fornicate. I had a willing older woman who invited me in, so I decided to move out. My father met me at the door, barring my way. "Dad," I said, "what are you doing? I'm 18; you can't stop me." Here's what he said.
"If I saw you on a raft in a river heading toward a waterfall, I would not be a loving father if I didn't do all I could to get you off that raft before it went over, even if it was against your will."
My father didn't stop me. He couldn't. But he did do all he could. I guess that's how I see it. I'm not looking to pass biblical laws, but neither am I hoping to rescind laws that assist people in living better lives. I don't believe that passing laws against sin make people less of sinners. Neither do I believe that ignoring them and letting them sin as much as possible is good for them. So I have to do what I can, striking some sort of a "happy medium" between theonomy and anarchy. To me, the California choice is a step closer to anarchy.
Plus, in the case of the California account, this wasn't the will of the People (By People I mean the citizens of California). 7 judges met together and decided to do this. The People have, for the past several years that it has come up, voted against homosexual marriage. This arbitrary decision by the Supreme Court Judges goes against Democracy.
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