As a side note, if you keep original intent in mind, I don’t see any evidence that any of the founders considered marriage laws to be unconstitutional. Laws regarding marriage did exist at the time the Constituion was written.
So now we go from a minor correction to a red herring. The geneology of the law was not the question. The argument I am trying to get across is that the current marriage law is entirely biased toward those who have the sort of sex of which the State approves - and the State has no business using what consenting adults do with their genitals as a basis for recognition of the marriage contract.
To show relevance to the OP, the current marriage law has religion as it’s basis, therefore violating the separation of church and State. QED.
A flaw in your reasoning: the OT has no prohibition against lesbian sex. You’ll have to check with the Jew Crew on this MB for more details, but my recollection of earlier discussions on this issue is that lesbian sex is not only not forbidden, but in some cases considered a mitzvah (blessing).
So, if religion was the basis of marriage laws, than lesbians could marry.
Sua
Sigh. All that proves is that you are a better Biblical scholar, at least on lesbian issues, than were the framers of the Constitution. They missed it, you didn’t.
Do you disagree with anything substantive about my posts, i.e., that the State’s refusal to acknowlege marriages other than one man/one woman can have no basis other than religious?
I disagree with the contention that marriage is inherently religious. I am an atheist, and I am married. I did not get married to my wife because of my religious beliefs, I married her because I love her and I want to live with her and have children with her.
“Marriage” certainly predates our religious customs. Our ancestors millions of years ago had some form of marriage, in the same sense that gibbons, swans, and sparrows have marriage…that is, a semi-permanent bond between two individuals for the purpose of rearing offspring. No, RELIGION merely coopted and codified the pre-existing natural human bonding process.
If you want to legalize polygamy or same-sex marriage, fine, it can perhaps be argued that these prohibitions are violations of SOCAS. But marriage itself is not religious, it is human. Unless you want to argue that laws against murder and theft are religious because they are mentioned in the ten commandments…but just because something is forbidden under hindu or muslim law doesn’t mean it shouldn’t also be a secular law. We don’t have marriage because of religion, religion has marriage because religions were invented for human beings, and marriage is natural for human beings.
This argument makes no sense whatsoever. The Framers didn’t “miss” anything about marriage or the Bible - the Constitution mentions neither. It simply wasn’t at issue.
You’re putting me in a very odd position. I am on record as opposing limiting marriage to one man/one woman, and I have provided the citation earlier in this thread. However, I certainly disagree with the substance of your posts. As Lemur pointed out so eloquently, male/female pair-bonding existed well before religion and indeed well before humanity. Marriage existed/exists in atheistic Communist countries. While I don’t know for a fact, I wouldn’t be surprised if the USSR, for example, limited marriage to one man/one woman.
Personally, I think that marriage laws should be made gender- and number-neutral, and I think they eventually will. However, I think that the pro-marriage reform forces will waste time and lose credibility if they argue this on First Amendment grounds.
Sua
That wasn’t the contention. The contention was that the framers of the Constitution viewed marriage to be so.
No it doesn’t. Our religious customs go back to painting on caves, 'way before monogamy.
Sorry. You’re just plain wrong. You’re citing species which are naturally monogamous, and humans aren’t one of them. By and in large, species in which both genders present the same appearance i.e., a male raven looks like a female raven, do indeed mate for life. Those species with obvious secondary sexual characteristics, like deer, most birds, us, generally do not do so - humans were no more born with an instinct to marry than they were born with an instinct to vote.
Nope, marriage came along later, almost certainly as a way to protect one’s rights to women, children and other valuable property. Be very careful when using biology to support religion or politics.
Eloquently, but incorrectly. See above. You’re probably a better lawyer than you are an anthropologist.
Screwtape, you’re making a couple of baseless allegations here. To wit:
In both these and other instances, you make reference to the Framers or to the U.S. doing this and that in regards to marriage. Unfortunately, the Framers and the U.S. don’t and didn’t do anything about marriage. The word “marriage” doesn’t even appear in the Constitution. It’s purely a state matter, just like driver’s licenses and property deeds and the like.
There is no Federal statute defining the terms or requirements for marriage. What there is is a sickeningly named “Defense of Marriage Act” which effectively exempts marriage from the state proceedings states are otherwise obligated to recognize under the Full Faith and Credit clause. Individual states are still free to allow marriages other than one man/one woman.
Also,
I’m afraid your quod is not quite demonstrandum, as “[a law having] religion as its basis” is most emphatically not the test for First Amendment violations. The Lemon Test was already quoted to you earlier in the thread, and if a law fails to meet all three prongs of the test, it is not considered to be a violation.
Wait a minute. Can you cite any human society that did not have some institution of marriage? Every human society that we know about has some form of marriage. Perhaps you are confused, and think I meant “monogamous opposite-sex marriage” when I said marriage. I agree that humans are not neccesarily naturally monogamous. I disagree that they do not naturally form semi-permanent bonds between them for the rearing and protection of children, since they do. From the inside, we call such semi-permanent bonds “love”.
Now, our ideas of what constitutes a valid marriage are certainly influenced by religion. Some religions allow polygamy, some allow same-sex marriage, some allow marriage of minors, some require that a marriage be officiated over by some religous figure. If you want to challenge the particular marriage laws on religious grounds, go ahead.
And I also disagree that it matters whether the founders thought that marriage was a religious institution. Perhaps they also thought that the prohibition against murder was a religious institution, but that does not mean that laws against murder are a violation of SOCAS.
And, it is not clear that cave paintings are religious in nature. That is one possible interpretation, but not the only one. I agree that our Cro-magnon ancestors probably had some form of religion, but cave paintings do not prove that they did. And anyway, I am arguing that marriage, broadly defined, probably predated anatomically modern humans.
You’re right - I have not your knowledge of the Constitution. Now can you take the philosophical points I raised with reference to the Constitution and apply them to the individual states?
Here’s my point: Laws which forbid the recognition of marriages except as contracted between one man and one woman are founded upon a dislike of the sexual practices which are different than those of the lawmakers. Those aforementioned dislikes are almost-certainly founded in religion. Religion has no business making contract law. Such sidewise attempts to legitimize one type of sexual practice and marginalize another are detrimental to the public welfare, injurious to the common good, and are, on the whole, not happy-making.
Wow, what a tangled web on a simple question.
There are secular and legal values to marriage that make it a state into which any members of this society so minded may enter, and which make it valuable to us as a society to preserve it.
Admittedly, every legal right, privilege, and responsibility resulting from marriage may be established by appropriate legal action apart from marriage. But establishing the paternity and responsibility for support for a child outside marriage is an expensive legal proposition. One of the prime reasons gay people are pushing for marriage, according to the publicity about that, is for the rights vis-a-vis each other that marriage automatically gives which require numerous legal documents and great expense to establish separately. You need not make out a will if all your property is going to your spouse and children – though it’s certainly advisable to do so. And so on; our laws contemplate marriage as a useful legal concept that people choose to enter into and which they customarily wish to have a large quantity of legal circumstances administered through. My wife is quite well aware of what I want to have happen if, driving home tonight, I am involved in an accident and am rendered comatose, and has the legal right to act in my stead as my spouse and therefore next of kin. I do not have to make out a durable health care power of attorney to enable her to act, as I would if I were single and wanted, say, Jmullaney to act in that regard.
Now, whether the specific marriage laws which we have in place are too much a concession to the majoritarian religion of America is an entirely different question. But I would be hasty to draw the distinction that marriage as an institution and what constitutes a legal marriage in a given U.S. state are two entirely different things. In short, if I were a Supreme Court justice, I could rule that the Nebraska marriage statutes, to take a randomly selected state by way of example, constitute an institutionalization of the standards of Christianity and are therefore in violation of SOCAS, but I could not therefore throw them out as totally illegal, but ought rather issue an opinion identifying the constitutional problems requiring adjustment by the legislature, and granting the appropriate relief to the petitioner.
In short, “marriage” is not a violation of SOCAS, although particular marriage laws may be.
The final point to address in this regard would be the conduct of weddings by religious institutions. And here I personally would draw a parallel with automobile inspections. Most states require them for valid reasons of public safety, and they result in additional business for automobile repair shops. But those same automobile repair shops conduct the inspections. A conflict of interest therefore potentially exists. States make various provisions to eliminate such conflict, but do not see a direct conflict in having trained automotive technicians who otherwise do repairs at such shops conduct the inspections at a fixed fee and with specific items for which to inspect.
In the same concept, marriage is both a civil institution and a religious concept, and having clergy of various faiths conduct marriage ceremonies, the couple to be wed having satisfied the requirements of the law to establish a valid marriage, alleviates the requirement that civil magistrates and such conduct such ceremonies, and enables those with religious faith to have not two ceremonies, one civil one to satisfy the law and one religious one to satisfy their faith, but a single ceremony in which the clergyperson functions both in a civil role and in his religious one.
In both cases, the state passes off its power to act to validate a particular civil activity to a class of people it deems competent to exercise that power properly. It does not therefore give any particular acknowledgement to any member of that class of people; allowing Lutheran pastors does not constitute state endorsement of Lutheranism any more than having K-mart auto mechanics inspect cars constitutes state endorsement of K-mart.
Screwtape, as my reference to the “sickeningly named” DOMA might indicate, I don’t generally disagree with the philosophical points you raise. Just, this being the Straight Dope, we don’t fudge the small points to hit the big ones.
I do disagree that it’s as reductionist as saying:
For one thing, the sexual practices to which I imagine you’re referring are only (or usually) viewed with distaste to the extent that they occur between same-sex partners. I suspect there are very few married couples from all religious inclinations who don’t engage in a little sodomy of one kind or another now and then. Even Ben Franklin was a bit of a libertine, and not terribly religious.
I would guess that a reading of history would show nontrivial but nonreligious cultural prohibitions against same-sex marriages throughout Western culture. The Greeks and Romans, after all, are somewhat notorious for their sexual behavior vis a vis young boys and, in cases, each other. But they weren’t permitted to marry, either.
Sigh. No, because “society” occured about the same time as “marriage.” And religion is older than both of them.
**
I’m with you so far, but you’re going to lose me in a couple of paragraphs. **
Right there, in fact.**
So you’ve discovered the biological origin of “love?” I don’t look forward to telling my gay friends that they’re not in love. **
Reductio ad Absurdum doesn’t work. **
You have, perhaps, another one? People who have spent a lot more time than either of us on this tend to think that they are, in fact, religious in nature - a different style of religion to be sure. Whether they are to appease the gods to bring to game, or protect them from the bear, or just to express admiration. Art and religion are branches of the same tree.
Now I’m getting tired of fending off the nit picks. The States refusal to recognize marriages except as defined in the prevailing religion of the lawmakers is wrong. That’s the basic issue. Argue THAT if you want.
And once again, marriage isn’t in the Constitution. So your contention not only lacks any support, but is actually contradicted by the First Amendment. If the framers thought marriage was inherently religious, they would have been obliged to void the marriage laws that existed at the time.
Sorry. You’re just plain wrong. You’re citing species which are naturally monogamous, and humans aren’t one of them.
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Citations, please. It is my understanding that humans are naturally serial monogamists.
And, of course, you didn’t respond to my supposition that atheistic countries have one man/one woman marriage.
Sua
Your, in general, preaching to the converted on this point. But you started out by saying that marriage is a violation of SOCAS. Quite simply, that’s entirely wrong and that is the thrust of most of the responses to your posting.
You might think it’s “nit picking” to make the distinction, but it’s actually very important. If you think it’s wrong to prohibit same sex marriage because it might have roots in religious thought, that’s one thing. But to argue that that renders it unconstitutional is simply wrong. Constitutional analysis does not require us to decide whether cave paintings are religious. At some level religion and society are so intertwined they can never be completely separated and it becomes a chicken or egg argument. That might suck, but it doesn’t make every law whose principle is embraced by a religion unconstitutional.
That should, of course, be “You’re”. I went to elementary school, I swear.
And I’ve already apologized to pldennison for this. One apology per point is all the board gets.
Are you serious? Okay, it will take some time to get the references from my wife’s anthropology and biology texts. For the present, if Homo Sapiens were naturally serially monogamous, rather than politically serially monogamous wouldn’t the social life of the average football team look just a leeetle different than it does?
Now before you attack - by “politically serially monagamous” I don’t mean the two-party system. When I say “politically” I’m talking about any hopefully non-violent means of dividing up resources and securing property. Marriage did not occur before the concept of personal property.
I wasn’t aware that I was required to.
Good night, folks.
It’s been snowing all day and I’m going home, so I won’t be responding to any more posts on this thread.
Zoff - good points. I hope we’ll chat again.
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Of course you are not required to. However, failing to respond to a point in a debate is considered to be conceding that point. Now that you have conceded that one man/one woman marriages are the law in atheistic countries, please explain how you continue to assert that one man/one woman marriage laws are based in religion.
And yes, I am serious about humans being serial monogamists. A primary biological indication of this is hidden estrus in human females. Not knowing when a human female is able to be impregnated provides an incentive for human males to stick around the female. The fact that she is willing to have sex at any time (theoretically) is an added bonus to sticking around.
As for your problems with football players, this is called “cheating”. It has been well-documented in monogamous species.
Finally, you keep stretching religion farther back in time, going so far back as the cave paintings. Well, religions have condoned many versions of marriage well beyond one man/one woman. Interestingly enough, Judaism is one of these, allowing polygamy. In fact, polygamy was outlawed in Judaism only in the 10th Century A.D., and explicitly because of the problems it was causing with their Christian neighbors, not because it was religiously prohibited.
Sua