Tuesday, June 03, 2008

The California Gay Marriage Decision

May people are rejoicing that homosexual men and women are now allowed to get married. The problem is that they have never been barred from getting married. After all, Gene Robinson was married at one time and he was homosexual.

What the Supreme Court of California did was not stop discrimination against homosexual men and women. It changed the definition of marriage. Without a vote of either the legislature or of the people directly, the court decided to change what a word meant. The problem is that "marriage" has always been defined (at least in European and American history) as one man and one woman, but it was not specified because it was one of those things that was understood to be true. It was an axiom. "Marriage is one man and one woman." This is simply the way it was.

Now, you can argue that this definition is unjust, but shouldn't a change in the definition of something so fundamental to society be decided by the legislature or by the people directly? If we can change the definition of marriage by judicial fiat, to be any two people who are not related (within a certain range or relationships), why can't we change it further to include any n people of any relationship? Why should a man not be allowed to marry his sister? Why should a person not be allowed to have multiple spouses - so long as they all agree that this is OK?

I am not advocating for incest or for polyamorous relationships. I am advocating that we make changes of this magnitude through the legislature, not the courts.

YBIC,
Phil Snyder

14 comments:

Robert said...

I think that sooner or later, gay marriages will be completely legally accepted, and I think it will happen through the courts primarily as an equal protection issue. I also don't have a problem with that. I think most people, hetero and homosexual, regard marriage as a legal arrangement and not a holy sacrament.

Whenever Christians have tried to enforce their religion by law, the results have been less than successful. Most of Europe had official State religions, and now Europe is the most non-religious or even anti-religious place on Earth. Let the law be the law, and let God's law be God's law.

What we cannot do is change the definition of the Christian covenant of marriage to include same-sex marriage, because that is clearly wrong. It is absolutely clear that biblically, homosexuality is a form of sexual immorality. Secular society, yes, will eventually accept same-sex marriage I think, but that is not the same as it being accepted as a sacrament of God. It should never be.

plsdeacon said...

Hi Robert,

I agree that gay marriage will probably be enforced by court order. But that is not the way things should be done in a democracy or a republic. That is my point. I don't have a major problem with marriage for homosexuals or some type of marriage like arrangment. But that is a decision that should be up to the state legislatures or to the people directly. Likewise, since it is a state issue, there needs to be the assurance that if a state doesn't recognize gay marriage, then it can't be "imported" from another state.

If gay marriage is imposed by judicial fiat we will still be fighting about it 50 years hence. Just like we are still fighting about abortion and will be fighting about it until the legislatures (and not judges) get ot make laws again.

YBIC,
Phil Snyder

Lynn (from Fr. Jake's) said...

Hi Phil,

I don't have exact dates for you, but the California legislature passed two bills in favor of same-gender marriage, both vetoed by But Gov. Arnold Schwarzenegger.

I might add my own feelings that since this really should be a legislative matter, it shouldn't be a constitutional issue, either.

And on an unrelated side matter, may your daughter's surgical team help God perform a miracle on your daughter today.

plsdeacon said...

Hi Lynn,

The legislative route is the one that should be used and that includes the signature of the Chief Executive (Gov. Pres. etc.).

All judicial fiat will get us (as a country) is another Roe v Wade type issue with the issue being used to raise large amounts of money to support other issues.

Thanks for the prayers for my daughter. We're all getting ready to go to the hospital right now.

YBIC,
Phil Snyder

Lynn said...

Phil, do find a way to let us (ahem) less conservative types know how your daughter is doing. That the rest of the family is stressed is just a given, but not dismissed.

Inherent in my comment above is the concept of what is a legislative mater, is a legislative matter. Over-riding with a constitutional amendment is just as wrong as by judicial fiat And yes - I agree that those with executive powers have the right to veto bills, and then, of course, the legislative body can override!

Living in Virginia, the separation of powers issues is a big frustration on many levels. We have laws in the Code that have been ruled unconstitutional, but the legislature doesn't have the courage to clean things up. Leaving the burden to the court system...it takes resources to deal with charges that aren't prosecuted, too.

plsdeacon said...

I disagree that overriding the legislature with a constitutional amendment is wrong. The legislature is supposed to express the will of the people, not the will of lobbyists or advocacy groups. Would it be wrong for the legislature to pass a bill banning gay marriage and then for the people directly (if the constitution allows for direct amendment) propose and pass an amendment that allows for gay marriage?

Personally, I believe that this country was on a trajectory to eventually accept gay marriage and it would have been accomplished in 30-50 years through the legislatures. But some people go impatient and worked through the court system and that galvanized several people to work through the legislature and state constitutions to ban gay marriage. The problem is, as I said in the pose, that people are changing the definition of marriage through the court system and a lot (if not the majority) of people find that route to be wrong. That is not how a representative republic is supposed to work.

Are the legislatures slow and unresponsive? Then work to change the legislature. Remember, since we vote for our reps, we get the government we deserve.

YBIC,
Phil Snyder

Lynn said...

Phil, even if the outcome isn't in line with my personal beliefs: I do not think constitutions should be used as a replacement for legislation. A constitution is the framework for the law.

If you think about it, it would be perfectly possible for a second amendment to the California Constitution that allows same-gender marriage. They could both pass, too. At least in the legislature there are mechanisms to sort these things out.

Using constitutional amendments as a third body of the legislature just doesn't make sense. If you don't like what your legislators do, you vote them out. If they do illegal things, they can be forced out.

Oh, and I'd say that the proponents of legalizing same-gender marriage aren't the ones with the money and power in the California situation. Lobbyists don't have as much control as people think they do, anyway. Glamorous scandals make the news, but most lobbyists do pretty boring and detailed work on behalf of industry. I know too many of them.

plsdeacon said...

Hi Lynn,

I would agree with you except for the fact that the courts are acting as a second legislature (particularly in this case). Something as fundamental as the definition of marriage is not something that the courts should be changing and if the courts change it, then it should be up to the people to change it back to what they want and their only mechanism to do that beyond the courts ability to "interpert" is via constitutional amendment.

If we accept the long understood definition of marriage as "one man, one woman" then there is nothing that prevents a homosexual man or homosexaul woman from getting married. What is prevented is two men or two women getting married to each other.

So, if the courts returned to their proper jobs of interpreting the law, then we wouldn't need consitutional amendments.

As another example, the courts said that burning a flag was protected speech under the first amendment. The only recourse that congress has against such a ruling is to pass a consitutional amendment permitting congress to pass laws protecting national symbols from public desecration.

When the judiciary is the sole arbitrator of what the constitution says, then the people (through constitutional channels) need to have the ability to change the document.

YBIC,
Phil Snyder

Suzer said...

Hi Phil. I've seen your comments at Father Jake's and such, and until now had not known you have a blog. I added my prayers for your daughter's surgery over there, but reiterate it here and hope her recovery is progressing well.

I'm never quite sure what to make of what is often called the "activist judge" argument, or what you call judicial fiat. There are two types of law that are created in our particular system of government -- legislative, and case law. Case law is law that comes about through judicial decisions when there is no particular written law in place for a certain subject, and is based upon other laws or principles a judge has to draw on in order to make a decision.

In fact, the principle of marriage as a "fundamental right" is found in case law, not in the Constitution or anything created by a legislature. However, the decisions regarding marriage as a fundamental right are based upon equal protection, found in the Constitution. Case law is made when there may not be a law directly applicable to a certain situation, or when a law is clearly unconstitutional but no other provision exists to support a given situation. Take for example, interracial marriage, which was outlawed by many legislatures until the decision in Loving v. Virginia overturned those unjust laws.

If we leave such important decisions solely to the legislature (who, in an ideal world, represent the will of the majority), who will protect the rights of the minority? Who will end segregation, for example? Judges interpret the law, and must weigh it against the Constitution (of their state or the U.S. Constitution) to be sure it is fair for all involved.

I just don't see this as the judges imposing their will upon the people. It is really the judges reviewing all the laws and legal precedents at hand and interpreting what decision is most in accordance with those laws and precedents. Judges do it every day. And given that marriage is a fundamental right in the U.S., judges most certainly should be ruling on it.

I tend to think same-sex marriage will become a reality in the civil realm, though I don't know if it will be in my lifetime -- soon enough for my partner and I to have the same rights as our hetero counterparts. I'm one of those progressives who doesn't really care if the church performs same-sex marriages or not. I know God loves us and blesses our relationship, regardless of whether any church says so. I don't believe any church should be forced to marry anyone they don't want to, and I don't think allowing civil marriages of same-sex couples would lead to that result (as some conservatives seem to fear).

(My thoughts may be expressed somewhat imperfectly here, and if so, I apologize in advance. I've had a lot on my mind lately, but wanted to respond to this interesting topic.)

I will continue my prayers for your daughter's recovery, and hope you are well, too!

plsdeacon said...

Suzer,

Welcome to my blog. I hope you will come by and comment often.

My problem is that I don't think this is an equal protection issue so much as it is a change in the definition of marriage issue.

For all of the history of the United States, marriage has been understood to be one man and one woman. Until very recently, that definition was not debated. What the California Supreme Court has done is change the definition of marriage to be "two people who love each other." I submit that this something that the people themselves should do (either directly through referendum or through the legislature), not nine (or how ever many) persons no matter how well qualified.

YBIC,
Phil Snyder

Suzer said...

Thanks, Phil. Although we are on opposites sides of this particular issue, I appreciate your willingness to remain at the table, so to speak.

I guess the problem is that civil marriage is basically a contract, not a definition. I agree that the historical understanding of marriage has typically been between persons of the opposite sex. Of course, historically, and even Biblically, this wasn't always one man/one woman, as polygamy was widely practiced during Biblical times. That's a whole other can of worms, though. :)

There are apparently some historical cases of same-sex marriage, but I'm not well-versed in that history, so I won't expound upon it. Suffice it to say, those examples are relatively few. I'm sure it's Google-able if you want to find out more.

The tricky part is that civil marriage is a contract, and a fundamental right. As the law would see it, any person who is legally able to enter into a contract (anyone who is old enough and not judged insane) can do so. However, with marriage, those contractual rights are limited to opposite sex couples. I would argue that, rather than "definition" being the problem, the issue involves the ability to contract. Equal protection gives my partner and me (theoretically), as upstanding citizens and taxpayers, the same right to enter into contracts as it does a hetero couple.

I've heard it argued that same-sex couples can contract for some of the rights and responsibilities appurtenant to marriage (making wills, trusts, etc.), so why do same-sex couples want marriage rights? Unfortunately, contract rights my parnter and I could make with the assistance of a lawyer are nowhere near as extensive as the automatic rights and privileges granted with a civil marriage. I've read awful stories of partners not allowed into an emergency room as their beloved died on the table. Even with carefully drawn up hospital visitation contracts in hand, they were denied being with their loved one at that last moment. Those types of contracts could be challenged by our families and others, and we'd have to pay a lawyer a whole lot of money to draft up legal documents that may or may not protect us.

Basically, by denying same-sex couples the fundamental right to marry, the state denies couples the right to enter into a contract. I just can't see how that isn't an equal protection issue.

I think, sometimes, a person's religious convictions color their understanding of the civil right at issue in this matter. It appears to me that most folks who are against same-sex marriage in the civil arena are actually against it for religious reasons. I understand that, even if I don't agree with it. I just wish we could all eventually reach a live and let live approach, at least in the civil sphere. Whatever churches want to do is up to them.

plsdeacon said...

I appreciate your position, Suzer. We have two truths (from an American or Anglo-American jurisprudence standpoint). The first is that marriage is between one man and one woman. The second is that marriage is a contract. As a good Anglican, I say that both are true. What you say is true and what I say is true, so how do we resolve this? I submit that something this important and this fundamental to society should be resolved by the legislature or the people directly - either pro or con.

I actually support allowing states to grant marriage to persons of the same sex - so long as that is not used as a "wedge" to get the church to bless those unions. (But that's another post.) But I don't like the court systems meddling in things that are best left to the legislatures. I think the best example of what can happen when the courts speak where the constitution is silent is in Roe v Wade. Because the courts shut down the discussion among the states by speaking on an issue that is not mentioned in the Constitution, the legislative process was not able to work itself out and we have spent tens of millions of dollars yelling at each other with one side calling the other side murderes and the other side saying the first side is against freedom and there is no end in sight. I fear the same result from the California Supreme Court (et. al.) decision. This issue will be used by all sides as a political hammer. If we allowed the process to work through the legislatures, we whould have a messier process, but a cleaner result.

YBIC,
Phil Snyder

Suzer said...

Heh. I have no idea how we resolve it! If I did, I'd probably be richer than I am. :)

Letting the states decide proves difficult, as marriages contracted in one state must be given full faith and credit in another state. Something to do with conflict of laws and family law, the specifics of which I no longer remember. Also, state laws allowing same-sex marriage still do not confer the hundreds (actually, over a thousand, I think) of rights and privileges given to hetero couples when they marry. Leaving the decision to the states would be separate and unequal.

The courts already having decided that the right to marry is a fundamental right, same-sex marriage should be given a strict scrutiny test under the Constitution. If legislatures ("the people") want to deny a fundmental right, they must show a compelling governmental interest, with a narrowly tailored law, with the least restrictive means for reaching that interest. Frankly, I don't think it even passes the compelling governmental interest test. Most cases that are that compelling involve things like public health and safety (national security interests, terrorism, etc.), not whether two men or two women wish to get married. I've seen so many arguments for and against, and those against are just unconvincing to me. And, of course, I also have a personal stake in the outcome, which surely affects my opinion as well.

I think sometimes it is harder for folks who are hetero to understand why same-sex couples want the right to marry. It is simply my love for my partner, and my desire to protect her with the same laws that protect hetero couples when they get married. I want her to have a right to my inheritance (little as it is) without the danger of some long-lost cousin challenging our relationship and claiming what is not theirs. I want to be able to visit her in the hospital, no questions asked, if she were in an accident or gravely ill.

I've gotten way off track here, and have to finish up some work before I leave for my chorus rehearsal, so I'll leave off here. Thanks for the good conversation and I'll be sure to keep reading!

plsdeacon said...

Suzer,

I will give you the last word on this debate (oops! Too late).

Is that anything like the government puplications with "This page intentionally left blank" on an otherwise blank sheet of paper?

:)

YBIC,
Phil Snyder