Freedom of Religion Argument for Gay Marriage
Offline Alright, one of my random passions is Supreme Court law. Don't ask me why I just enjoy reading ridiculously boring Supreme Court decisions. As you probably know there is a case for gay marriage rights making its way through the court system and will almost certainly end up in front of the big court. As a libertarian I am a supporter of gay marriage (although as a divorced man I don't think gays should be so eager to get married) however I have serious issues with the arguments the gay rights lobby is using in court.
They are trying to make the case that marriage is discrimination toward gays and the government. They are trying to use the 14th Amendment, in particular section 1 which states in part
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The claim is that gays are not receiving "equal protection of the laws" because heterosexuals can marry under the law and they can't. Constitutionally this is a very weak argument because if you take two people call them John and Jerry either one is allowed to marry someone of the opposite sex and neither is allowed to marry someone of the same sex. The fact that Jerry wants to marry another guy and John does not does not mean the law is being applied unequally. Just because one person WANTS to do what is illegal and another person doesn't makes no difference. If the Supreme Court ultimately upholds the decision (which it wont) the result would be a precedent for judges to legalize anything they wanted using the 14th Amendment. For example, if John wants to use cocaine and Jerry doesn't is the law against cocaine unconstitutional? If Jerry wants to own a nuclear weapon but John doesn't is it unconstitutional to ban private ownership of nuclear weapons? Such a decision would put the court in control of what is legal and what isn't which I am strongly against even though I am sympathetic to the efforts to legalize gay marriage (and cocaine).
The 14th Amendment was passed to outlaw slavery. Before the 14th Amendment the Bill of Rights did not apply to the states in any way. Thus states could pass laws targeting specific groups of people (blacks) and removing their rights of speech, religion, guns, cruel & unusual punishment, search & seizure etc. Only the federal government was restricted by the Bill of Rights. So the 14th attempted to ensure that newly freed slaves would be assured the same rights as all other citizens and prevent states from passing laws that singled out particular groups.
Over the years, it has become mostly accepted that the 14th Amendment applies most of the freedoms of the Bill of Rights to the states. The Supreme Court struggled over this point a little with many arguments over exactly what are the "privileges and immunities" of being an American citizen. Some wanted to simply use the entire Bill of Rights as a complete list but that runs into problems because the entire Bill of Rights wasn't written with the idea of it applying to the states. Namely amendments 3, 9, and 10 can't apply to the states because they specifically address the federal government. Most modern case law applies the other seven amendments to the states although there are still quite a few questions about the 2nd Amendment and the extent to which states can regulate firearms.
The right to privacy eventually came out of the "privileges and immunities" idea, mostly from cases involving laws against contraceptives, sodomy and of course the infamous Roe v Wade. Even though the courts could never really describe where it came from the idea that there are certain areas of life the government can't interfere in became popular among liberal judges. My problem with this doctrine is that it is completely arbitrary and makes who is in the judges seat extremely important and political.
My legal argument for gay marriage lies in the 1st amendments protection against prohibiting the free exercise of religion. Marriage is fundamentally a religious institution. Even I, an avowed atheist, was married by a pastor. Different religions hold different views of what marriage is and what types of marriage or acceptable. Just because Christianity and other religions that promote monogamous male-female marriages are the majority does not mean that belief in other marital structures does not exist in other religions. The 1st Amendment was intended precisely to protect the rights of the MINORITY. By arguing that marriage itself is inherently a religious institution it readily follows that the government approving of marriages from one religion while outlawing marriages from another is blatantly unconstitutional.
This case has come up before in Reynolds v. United States where a Mormon was fighting laws against bigamy. In one of the worst decisions in history the court claimed that the government could regulate actions and so while Reynolds could believe it was his religious duty to marry more than one wife the government preventing him from doing so did not prohibit the free exercise of his religion. They compared it to the government outlawing human sacrifice even though some religions might believe in it. Obviously, this is only a straw man argument because the Supreme Court deals with similar issues all the time. For example, you have freedom of speech but you can't call someone on the phone and harass them. You can't yell FIRE! in a crowded theater. The courts have routinely declared that all of your freedoms end where other peoples freedom begins. Is it so unreasonable to expect that we can decide that marriage between any number of consenting adults does not infringe on the rights of non-involved parties while human sacrifice does? The line of legal reasoning certainly becomes less arbitrary then the line the courts are currently following.
If, if a white man puts his arm around me voluntarily, that's brotherhood. But if you - if you hold a gun on him and make him embrace me and pretend to be friendly or brotherly toward me, then that's not brotherhood, that's hypocrisy.- Malcolm X
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Plus the thought of forcing the Fundys to argue against freedom of religion makes me smile.
Your argument would be correct except that is based on the incredibly, massively false assumption that homosexuality is a choice. Your john jerry analogy should go along the lines of: Jerry wants to marry someone he is naturally attracted to who happens to be a man while John also wants to marry someone he is naturally attracted to who happens to be a woman. Because john can marry someone in accordance with his sexual preference and Jerry can't, they are not receiving equal protection under the law.
Your cocaine use and nuclear weapons comparisons are irrelevant because they represent a choice not something naturally ingrained in our existence.
I don't know if that's completely true. haven't there been a bunch of court cases that established the supremacy of federal law over state law? The Jim crow laws, grandfather clauses, reading tests and other oppressive tactics were more exploiting loopholes than violating the federal constitution outright.
it may be completely arbitrary but allowed under the 9th The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Wasn't the huge controversy over whether or not to include the bill of rights over the fact that listing our rights may prevent us from claiming rights in the future not explicitly enumerated in the BOR. The rights listed in the BOR are just as arbitrary as the right to privacy. The only rights we have are the ones we take ourselves.
Religion definitely has a secular component. A ship's captain and others certified by the gov. without religious affiliation can perform legally binding marriages. Maybe if you formed a religion that mandated gay marriage this might apply but it would probably fail for the same reason Reynolds did with bigamy. Just because its a religious doctrine doesn't mean it can violate laws.
I'm not sure if that decision was warranted by the constitution but i don't think it was a bad idea. If you can justify bigamy under the first amendment you can justify anything using it.
Even so, it would be hard to show that gay marriage is a religious idea. And also the gov. regulates tons of things that don't infringe upon the rights of non-involved parties. drug regulation comes to mind. Imho i think the gay rights activists are going to have more success using the 14th amendment. Denying gays the right to marry is just as discriminatory as denying a person rights based on their race.
I Am My God
The absence of evidence IS evidence of absence
I don't see gay marriage as an issue of freedom of religion, but rather as equality under the law. It is not the same as someone wanting to use cocaine.
Marriage confers certain legal benefits and rights for the partners-as well as all the obligations. Medical decisions, hospital visitations, tax structures that benefit married people over singles, and contractual obligations as in community property states. Even in non-community property states - such as Oregon where I live now - if you are married and there is real property, the spouse has some preeminence over siblings and parents.
I always thought that the state should not be involved in marriages - which carry all those religious connotations - but instead should issue domestic partnerships. Go though the state constitution and replace the word "marriage" with "domestic partnerships". If you want to get "married" contact your clergyman.
Domestic partnerships:
May be formed by any party(ies) for the purpose of all that legal stuff. You have an elderly parent who is still competent but will be sliding out over the next few years. You form a domestic partnership - now you don't need a medical power of attorney or a regular power of attorney. You can get over fighting with your siblings as to who has to take care of the parent -- it is the one with the partnership. In absence of a will, the one who had the partnership with the parent gets the bulk of the estate as that is who did all the work.
Maybe a group of people form a domestic partnership in order to gain the legal advantages. so what?
Maybe the people who form a domestic partnership are the same sex, different sexes, or neuter. So what?
You go down, fill out and sign the forms in front of a notary and you are done. Employers can do the same as they do now - pass on the costs for adding any of your domestic partners and/or children to your health insurance. Hospitals and doctors can do what they do now - if you say you are married, you don't have to show proof of the marriage. So, why should you have to show proof of a domestic partnership? Schools - many have lists of who is allowed to pick up which child. So what would have to be different? I don't see why this wouldn't work.
-- I feel so much better since I stopped trying to believe.
"We are entitled to our own opinions. We're not entitled to our own facts"- Al Franken
"If death isn't sweet oblivion, I will be severely disappointed" - Ruth M.
Except that getting married is a choice regardless of whether or not sexual preference is. That argument carries water when your talking about a sex act in private (Lawrence v Texas) but the Supreme Court isn't going to let it fly for something as public as marriage.
The courts did find that Jim Crow laws directly violated the Constitution using the 14th Amendment. The court system by its nature is rather slow but starting with Buchanan V Warley (mayber Worley can't remember) and mainly with Brown v. Board of Education (which overturned the previous ruling of Plessy v Ferguson) the courts found that "separate but equal" wasn't really equal. The supremacy of federal law is still far from settled, in some areas such as taxation it is clear but the strongest challenge to the Arizona immigration law is on the grounds of the supremacy clause but theoretically the federal government only has supremacy on powers specifically given by the Constitution. In practice the fed has been constantly taking power away from the states, mostly in the name of the commerce clause.
Which would be great if the Supreme Court ever used the 9th Amendment or the 10th. Unfortunately, the court seems to have decided it is too difficult to interpret them and thus has chosen to ignore them. I know it seems like nitpicking but when dealing in the legal words are very important. I wouldn't be opposed to a 9th Amendment argument for gay marriage, but it would also have absolutely no precedent to rely on and would be particularly difficult in the case of gay marriage because when the Constitution was ratified there was no gay marriage.
Yes, but a strong case can be made the historically and socially marriage is primarily a religious institution and thus protected by the first amendment. The Supreme Court uses varying levels of scrutiny to determine if a law is constitutional. If a law concerns a fundamental right such as freedom of religion or speech the government has the burden of proving that the law is
1 Justified by a "compelling government interest" meaning it protects lives, national security or the fundamental constitutional rights of others.
2 Is narrowly tailored to achieve that goal
3 Is the least restrictive means for achieving that interest
So by recognizing marriage as a fundamentally a religious act (belief in no god is also considered a religious belief by the court recognized by conscientious objector cases during Vietnam can't remember the names of any of them now) the courts would have to use the strict scrutiny standard. Under that standard I don't see how anyone can plausibly claim banning gay marriage is a compelling government interest. Note, things like human sacrifice are still easily outlawed. So it isn't a blank check of declare whatever law you want to break as being against your religion. Marriage as a religious act was around long before our government ever existed why should it be defined by Christians only?
I'm not sure if that decision was warranted by the constitution but i don't think it was a bad idea. If you can justify bigamy under the first amendment you can justify anything using it.
The government can regulate drugs because they don't fall under strict scrutiny. The Supreme Court isn't going to protect gay marriage under the 14th amendment. As I noted above, marriage is a choice and the court will certainly find that way. You don't need to argue that gay marriage is a religious idea, you only need to argue that marriage is a religious idea and since the bible talks about god setting up marriage you can pull the evidence right out of a religious document. Once you are under strict scrutiny find an established church that is willing to marry gays and then the court is forced to use strict scrutiny and that 5 to 4 against suddenly becomes 5 to 4 in favor.
cj, I understand where you are coming from but the real underpinning of your argument is that married people (even gay married people if they are ever allowed to marry) are given unequal protection compared to single people. Which I think is BS and if I had the time would probably go sue the government in favor of us who will never get married again to male, female or others. Why should married people get favorable tax laws and especially estate laws.
If, if a white man puts his arm around me voluntarily, that's brotherhood. But if you - if you hold a gun on him and make him embrace me and pretend to be friendly or brotherly toward me, then that's not brotherhood, that's hypocrisy.- Malcolm X
I have no idea why married people get favorable tax laws. They do. And we have choices - we can take away the favorable tax laws or we can make sure everyone can take advantage of them if they so desire. If we did take them away, it would undermine part of my argument. I'm aware.
-- I feel so much better since I stopped trying to believe.
"We are entitled to our own opinions. We're not entitled to our own facts"- Al Franken
"If death isn't sweet oblivion, I will be severely disappointed" - Ruth M.
I suspect that that is your major motivation here. You want to make the fundies squirm.
There is certainly nothing wrong with that as a goal. However, I find your legal analysis wanting.
First, shall we consider the path to SCOTUS?
Next up in the 9th circuit court of appeals. They can come out all over the board on stuff. However, I would bet that the 3 judge panel is going to rule in favor of gay marriage. That is exactly the reason why, regardless of the composition of SCOTUS, they are the single most overturned court in America. Let's just say that they do that.
Step two is the 9th circuit sitting en banc. For them, that is not required but is generally used in cases of “unusual significance”. I am sure that this will count. Generally, that will be 11 judges but could potentially be all 28 of them. I would guess that they will do the 11 judge panel on this one.
Now the new larger bench can go either way. However, factors that matter are just how rare the en banc panel is and which judges end up on it. Pretty much it is a crap shoot as far as what happens on this level.
If they let prop 8 stand, then there will be an appeal to SCOTUS. If they overturn it, there will be an appeal to SCOTUS. However, here is where it gets sticky.
When SCOTUS gets the appeal, how they deal with it depends on what floats up to them. Remember that this could easily take 2 to 4 years for that to happen. A lot can happen in that time. We may (I really hope we do) have a new president. The balance of power in both houses can shift quite a bit.
Let's consider the two scenarios.
Prop 8 stands. If SCOTUS does not want to let gays marry, then all they have to do is refuse certiorari and the matter sort of ends there. If the then current court is activist, then they will hear the case and see what they can come up with.
Prop 8 is down for the count. Here a conservative court might want to hear it, if for no better reason than to issue a ruling that the voters have the right to pass laws (never mind which law). An activist court would probably not want to hear the case, thus leaving prop 8 dead for the time being.
There is also a third way that any court can deal with this. Since you consider yourself a SCOTUS watcher, I am referring to Hiibel v. Nevada.
That was a case when the question was in large part over the fact that different states had different laws and the petitioner wanted to know basically, what the unified law should be. In that case, the supremes ruled that Dudley Hiibel had not asked the question that he thought he was asking. Basically they ducked the matter and left it for a later court to deal with another day.
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I don't get why libertarians are in favor of having the government sanction any marriage gay or strait. It is a system that discriminates against single people. Gays argue that hospitals only allow spouses to visit in certain circumstances. Does this mean that an asexual person can't have their best friend visit them?
The government needs to get out of the whole sanctioning marriage business because it is a religious and cultural matter and the government needs to get out of the business of promoting these. The government should only be in business of enforcing contracts involving communal property and parental rights/obligations.
BAN STRAIT MARRIAGE.
Taxation is the price we pay for failing to build a civilized society. The higher the tax level, the greater the failure. A centrally planned totalitarian state represents a complete defeat for the civilized world, while a totally voluntary society represents its ultimate success. --Mark Skousen
Equallity, except for single people?
Taxation is the price we pay for failing to build a civilized society. The higher the tax level, the greater the failure. A centrally planned totalitarian state represents a complete defeat for the civilized world, while a totally voluntary society represents its ultimate success. --Mark Skousen
Usually in the emergency and ICU rooms, only immediate family is allowed - that is defined by most hospitals as spouse, parents, stepparents, children. They might stretch for grandparents, depends. Almost never for uncles or aunts (unless it is a child being raised by said uncle and/or aunt), nieces, nephews, cousins, significant others, or any other friends. This has been an issue where a gay couple have a child who winds up in the emergency room - only one dad allowed. Or in ICU where a lesbian is unable to stay with a life partner who is dying.
Fine with me.
-- I feel so much better since I stopped trying to believe.
"We are entitled to our own opinions. We're not entitled to our own facts"- Al Franken
"If death isn't sweet oblivion, I will be severely disappointed" - Ruth M.
Yeah, it's the shits.
-- I feel so much better since I stopped trying to believe.
"We are entitled to our own opinions. We're not entitled to our own facts"- Al Franken
"If death isn't sweet oblivion, I will be severely disappointed" - Ruth M.
Don't get me wrong, I think there is only a slightly better chance of the Supreme Court overturning prop 8 than there is of Jesus Christ coming to eat dinner with me tomorrow. I do think they will hear a gay marriage case eventually (maybe not this one) because it may take years to get there but it will take even more years for the American people to stop being bigots on the issue. I just made this post because of my internal war of liking the result of the judges decision but I truly disapprove of the legal reasoning behind it.
Also I am very aware that they are unlikely to overturn a decision like Reynolds v. United States simply because it is 130 years old. Of course Plessy v. Ferguson was around 60 years old when it was overturned. It's a long shot but I would think it would have a better chance of success, because when SCOTUS does hear a gay marriage case and they get the 14th amendment argument they are simply going to say marriage is a choice. And as far as I know there has not been a polygamy case before the court in modern times and the court today is a heck of a lot different than the court 130 years ago. First Amendment jurisprudence has come a long way since then. Strict scrutiny wasn't introduced until the 1930s so I would be very interested to see a case retake that line or reasoning. Even another polygamy case would be kind of fun to watch. Not interested enough to marry two women but if someone else wants to, I'll support them and cheer them on.
And yeah, since I'm probably not going to get my way anyhow, whats wrong with at least getting the joy of watching fundies squirm.
If, if a white man puts his arm around me voluntarily, that's brotherhood. But if you - if you hold a gun on him and make him embrace me and pretend to be friendly or brotherly toward me, then that's not brotherhood, that's hypocrisy.- Malcolm X
And that would be an added benefit of my theoretical argument if the Supreme Court bought it. If marriage is a religious institution then it follows that government is out of the business of sanctioning or not sanctioning it just like they are supposed to be out of the business of sanctioning or not sanctioning religious schools. Marriage is between the people getting married what a radical concept.
If, if a white man puts his arm around me voluntarily, that's brotherhood. But if you - if you hold a gun on him and make him embrace me and pretend to be friendly or brotherly toward me, then that's not brotherhood, that's hypocrisy.- Malcolm X
OK, that is a point that I can work with. Let me present this in a certain order.
I used to work with some dude (let's call him Bill). He is 6 foot 14 inches tall and built like a body builder. One time, somebody had something stolen from him and we both jumped into his contractor sized pickup and took off to find the thief. All in all, this is a solid dude anyone would do well to know.
He happens to enjoy prancing around enough to make Christopher Lowell look like an amateur.
It also happens that his whole family has disowned him over the gay thing. Well, thus far, it sucks to be him. No court can fix this much.
He has a friend he has lived with for (at the time this happened) over ten years. Let me call him Bob.
Well, a few years ago, Bill was invited to a party, only to find out that it was done specifically to bash him. It took Bill over a year to learn how to walk again.
So who sat beside Bill while he was in a coma? Not Bob. Not anybody else either.
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What do you mean they are just going to say marriage is a choice. Of course it is a choice, voting is a choice too. I can chose not to vote just as easily as i can choose not to get married. We have the choice to engage with all of our rights but that does not justify the government taking our rights away from us. The argument from the fourteenth amendment is that a person's sexual orientation just like someone's race should not deny them equal protection under the law.
Because the federal government recognizes the right to marry, they should not have the power to discriminate against people based on factors out of our control. they should not be able to discriminate based on race, gender, sexual orientation etc. this argument is not going to fail because marriage is a choice. we have a right to make the choice
I Am My God
The absence of evidence IS evidence of absence
I can understand wanting to keep down the number of visitors when the patient is injured or extremely ill. I really don't understand why an exception for people like Bill and Bob couldn't have been made.
-- I feel so much better since I stopped trying to believe.
"We are entitled to our own opinions. We're not entitled to our own facts"- Al Franken
"If death isn't sweet oblivion, I will be severely disappointed" - Ruth M.
This ought to be good.
I decided to answer this part first, because the rest of the paragraph is so retarded, I will have to lough for an hour before answering it.
Now, let us look at your argument: Gays DO in fact receive equal protection under the law, because they, just like the straight people, are free to marry opposite sex.
Unfortunately for this argument, there is a reason people connect on a personal level and a reason why they marry - they like to fuck each other and all the stuff that comes with that and would like those priviliges to be institutionalised. Now, if gay marriage remains illegal, this privilige will not, and I repeat NOT, be equally distributed to gay and straight, because straight people are free to marry people they like to fuck, while gay are not. Therefore, gay and lesbian do not receive equal protection under the law, until such a time as their marriage is legalised.
But what if we allow gay marriage? Would that be an infringement on someone's legal protection under the law? Absolutely NOT. Both straight and gay people will be able to marry same or opposite sex - you cannot get more equal than that.
Now let's go to your extension of the demonstratively failed argument and see how amusing it gets.
Now, here's the basic difference between institutionalising the relationship between people we like to fuck each other and private ownership of nuclear weapons: marriage is NOT illegal, while private ownership of nuclear weapons IS, no matter if you are straight, gay, hermaphrodite or Oprah. Therefore, we ARE treating gay people on unequal terms by saying that something that is perfectly legal for straight couples is illegal for them. It has got NOTHING to do with nuclear weapons, unless we at some point declare that only straight couples may own them privately.
Obviously, you can NOT argue that unequal treatment isn't there, but you can argue that it's there for a good reason and the legal team defending prop 8 did try to argue just that. Of course, if you read their arguments, you will see a total disaster with no scientific, legal or any other weight to the arguments. The arguments basically boiled down to: 1) we don't like gay marriage 2) gay marriage is a threat to "real" marriage. 1) is not a fucking argument at all, while 2) is completely unfounded - there is no scientific or any other legally significant documentation that suggests that, because Jerry and John married, your marriage with a woman would suffer.
I don't see how this is relevant to the discussion of gay marriage, but looking at the makeup of the supreme court today, I can certainly see why this is an extremely worrying aspect of the US legal system, once extreme right wing gets to play judge & jurry.
Free exercise of religion? Really? That interpretation of the first amendment is a stretch and could be extremely dangerous if accepted.
Freedom to practice religion does not allow you to do something that breaks the law, it just makes sure you will not be treated differently than any other religious person. If this is the case, we are back to your nutty argument about equal treatment of gay and straight - they are both equally free to marry opposite sex, no? They can practice their religion just fine, according to you.
If you really want to argue that first amendment says that your religious practice comes before law, in this case because Jerry would like his religious right to fuck John in a marital institution, I really think you should reconsider. Religious practice must NOT trump law.
Other than these obvious flaws in the argument, marriage is obviously not just a religious institution and it obviously stretches far beyond religious significance and jurisdiction. You can not even visit your partner in the hospital, if you are not married and that's just for starters. Get real.
The court in this case has a very valid point, which is exactly the one I gave you just a moment ago: you can not argue religious practice over law. In the particular case of bigamy I really do not know what would have been a better case for him, because it's not like the entire contemporary Mormon religious community wants to institutionalise fucking of multiple women by one guy. If that's what they wanted to do an mass, then the whole religious community as such could maybe have made the argument and tried it at court with some weight to it, but not this one guy. This does not mean that the entire Mormon religious community of Utah would have won the case, just that they would have had a better shot at making a point if multi-fucking merital institutions were the core of their beliefs and the practice was harming noone.
Logic is a systematic method of coming to the wrong conclusion with confidence.
If, if a white man puts his arm around me voluntarily, that's brotherhood. But if you - if you hold a gun on him and make him embrace me and pretend to be friendly or brotherly toward me, then that's not brotherhood, that's hypocrisy.- Malcolm X
Possibly a better question would be what else come from this?
So let's define gays as a group who are deserving of some type of legal protection. OK, I can run with that for the moment. However, what comes next? Should fugly chicks be able to cite the next big supreme court ruling so that they can force a situation where they can tend bar?
Here I propose an experiment. Let's find so chick who is so fugly that she can't even do British porn but happens to be smart as a whip. We will send her to bartender school. Now we have her apply for a job at every bar in town. She has whatever passes for a bartenders C.V. So all bar owners know that she is capable of doing the job.
OK, now nobody will hire her because of the fugly factor. Has she been a victim of discrimination? Should she be allowed to cite case law that states that anyone who can claim anything at all is automatically a protected minority?
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