I’m a straight man, but I feel I have a strong stake in the gay marriage argument. If the “religious institution of marriage” has to be protected at a state level from homosexuals, why would I, as an atheist, have any right to get married? I personally think the word “marriage” should be purged from government in general, and the government should ONLY recognize civil union contracts (between two consenting adults, regardless of sexual preference). Let the churches decide what “marriage” means.
That said… aren’t there religions that recognize gay marriage? If so, doesn’t that mean making it illegal would trample the religious rights of homosexuals? Am I missing something?
This issue seems like a no-brainer to me, and this is just yet another reason that it disgusts me that it’s an issue at all.
Their religious rights or liberties are not necessarily being infringed upon by a state that refuses to recognize same sex marriage although their religion may consent to same sex marriage. Employment Division v. Smith stipulated that a law which is neutral on its face and of general applicability is not unconstitutional because it has the incidental effect of burdening some religious belief or practice.
Talk to the Mormons and you’ll see that our country, unfortunately, has a rather long history of telling religions that they can’t pursue their marriage beliefs here.
Talk to the Mormons and you’ll see that our country, unfortunately, has a rather long history of telling religions that they can’t pursue their marriage beliefs here.
This is a point that’s frequently overlooked. The gay marriage ban is based on purely religious grounds. No one has ever demonstrated that same-sex marriage is a danger to society, although religious conservatives have tried their damndest.
Of course, the problem with any policy that’s rooted purely in religion with no rational basis is that it discriminates against people whose religion takes a different point of view.
As a Wiccan, I’m suffering discrimination because a medieval Christian doctrine has been codified as law – I will not be allowed to marry. And Christians suffer too. The United Church of Canada – Canada’s largest protestant denomination – is fighting for gay marriage. But right now, gay United Church members could not get married in most parts of my country.
How do we decide what religious dogma becomes law, and which doesn’t?
No, because the churches that have gay marriage can still have the ceremony. The state just doesn’t recognize the ceremony as bestowing any legal rights. Part of the problem here is that we have two different things with the same name. There’s religious marriage, where two or more people form a religious bond to each other in front of their god or gods. There’s also civil marriage, where (in the US) a man and woman engage in a legal transaction that gives them certain rights and responsibilities with regards to their seperate and mutual property and benefits.
Part of these reason these two things get mixed up is because the institution of civil marriage developed out of a particular tradition (the Christian one) of religious marriage.
Not if some people get their way. A bill was recently introduced in Virginia that would make it a misdemeanor to reside within the state of Virginia while married to a person of the same sex.
Yeah so? Should we repeal homicide statutes and statutes against theft because they have purely religious grounds, i.e. based upon the Ten Commandments? The former Supreme Court Justice of Alabama decided to display the Ten Commandments because they functioned as the foundation for many if not all of our laws today. I suppose we should repeal all those laws whose inspiration for existence stemmed from the Ten Commandments or the bible? Furthermore, the ban is not necessarily based upon purely religious grounds any longer. It seems to be more “tradition” consideration than religious observance. The state is not consulting the Christian community for advice as to who is to receive a marriage license or be recognized as " married".
Of course not. We should only repeal those laws that are based on the Ten Commandments (or other religious sources) when there is no independent, rational basis for those laws. Thus, we have laws against homicide because there is an independent, rational basis for laws prohibiting homicide, but we have repealed laws prohibiting, for example, wearing mixed fibers, because there is no independent, rational basis for such laws.
“Tradition” is no more a rational reason for a law than “Because God said so” is.
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Yeah so? Should we repeal homicide statutes and statutes against theft because they have purely religious grounds, i.e. based upon the Ten Commandments?
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That’s an interesting position. How do you explain the many, many societies that outlaw murder which aren’t Judeo-Christian? How about the societies that preceded the Ten Commandments which condemned murderers? The Code of Hammurabi is the earliest known set of laws, and it condemns murder. Are you sure you want to postulate that without the Ten Commandments, murder would be just hunky-dory? Purely religious grounds, my ponderous rear end.
Well depending on which court you consult tradition is a basis in their opinions. Tradition was used, I think by the Nebraska Supreme Court, to permit the state practice of opening up sessions of their Congress with a prayer and then paying the chaplain to do so. Tradition has also been used by the U.S. Supreme Court to permit the displayal of a Nativity Scene during Christmas.
Kelly M what if this ambiguous standard of “independent rational basis” is itself premised upon a religious tenet? I am guessing you are probably going to take the position that the maintenance of “order” in society is the independent and rational basis for homicide statutes and other laws but this really does not escape the realm of religious dictates since religious conduct laws were also espoused for an “orderly” society.
Of course they were. But you can take religious considerations out of the law entirely, and there’s still a whole host of reasons that murder would be illegal.
However, there are no reasons left to deny gay people the right to marry.
“Tradition” is the last resort used by a judge who personally wants to retain some law but can’t find a reason for doing so. It’s a judicial cop-out, and it’s wrong (except possibly where a decision betwen equally reasonable but incompatible options is required).
Mr. Visible I was prepared to ask Kelly M exactly how the word “independent” was being defined but I assume Kelly is using a similar if not identical definition as the one implicit in your post.
However, I will say the following and I echo the words of Supreme Court Justice Scalia in his dissent in Aguilar vs. Edwards. Just because some legislatures have passed a law because of religious motives does not render the law invalid. General income tax exemption and property tax exemption laws for religious institutions should then be abolished because they most certainly came into existence from a religious motive. Laws accommodating school children to attend private religious schools by busing them on public school buses or public transportation should be rendered null and void because they came into existence, undoubtedly in some if not most states, as a result of a motive to accommodate religion or a religious motive. Just because there is a religious motive underlying the legislatures in how they define “marriage” I do not think should render the law invalid.
Then it’s not “rational”. Religious tenets are, by definition, irrational.
A religious society might have rules that can be rationally justified, but until and unless they do so, without reference to irrational religious belief, their rules are not rational in basis.
While I am inclined to concur with you philosophically the fact is Judges, whether it is a last resort or not, do from time to time rely on “tradition” as a premise, among many premises at times, to base their holding. I think an argument can be made that traditionally marriage has been recognized by a male and female and has been done so for so long that it is no longer intended to convey nor does it convey a religous tenet. Similar to the reasoning by some courts to permit the displayal of the Nativity Scene indicating that traditionally the scene is used to go along with the season of “Christmas” as opposed to conveying a religious message just as traditionally a Christmas tree is an object associated with the season of “Christmas” along with some religious Jewish items, such as the seven candlesticks (is that the Menorah?)?
They are? According to whom, you? Are you really in a position to pass upon the rationality of all religious tenets? How did you acquire such omniscience?
The presence of a religious motive for a law or other government act necessarily brings that law or action under suspicion of having been founded in an irrational basis. However, a law which incidentially or directly benefits a religious group can still have a rational basis. For example, the tax exemption for churches is founded on the rational basis that most churches provide a social benefit sufficient to justify the benefit of tax exemption, for example. And we give the same benefit to nonreligious organizations that provide the same social benefits. This law, while perhaps motivated by religion and which certainly benefits religion, nonetheless has a basis in rationality that does not rely on religious belief. Nor is it based on any one religion’s belief, but rather on the fact (evident from the historical record) that religious groups provide social benefit. The legislature can rationally conclude that the public’s interest is served by such a taxation policy.
This is totally inapposite to the marriage restriction. There is no rational argument to claim that the ban on gay marriage provides a social benefit. It is clearly founded in a tradition that traces back to the pronunciations of one particular religion. Many religions disagree with it and its presence actually harms some. Scalia is cleverly trying to disguise the specific enactment of one religion’s pronouncements (which even Scalia must admit is impermissible) as the social support for religious organizations generally. Accepting the latter does not mandate accepting the former, as the two are not the same thing. Typical Scalia, I am afraid. He’s a clever little bastard.
