The Constitution, Natural Law, and Homosexual Marriage

I was just reading this article by Rabbi Avi Shafran. I was wondering how fellow Dopers might respond to the following paragraph in said article. Specifically, Dopers who think homosexuals should have the right to marry:
The relationship between American jurisprudence and “natural law” – a phrase connoting that certain transcendent values inhere in human nature and society – has always been somewhat amorphous. But there can be no denying that many of the essential mores we consider to underlie civilized society have roots in religious tradition. And no doubting that when James Madison drafted the First Amendment he did not likely envision the words “Congress shall make no law respecting the establishment of religion” being invoked to undermine time-honored, cardinal institutions of human civilization.

He probably didn’t, but our values have changed since Madison’s day, our scientific knowledge has changed, our attitudes about sexuality have changed, and our beliefs about the proper role of the government has changed, so Madison is no longer dispositive.

The relationship of “natural law” to American jurisprudence is not amorphous – it’s absent. American law rests upon the federal and state constitutions, which are of course the written product of human artifice. To some extent, mostly at the state level, gaps are filled by looking to the common law, but that is the accretion of any number of human decisions made in the past. “Natural law” is a meaningless concept in American law.

It maybe could be argued that the Declaration of Independence was partly animated by natural law, but that really wasn’t jurisprudence; it was advertising.

I give it a big “so what.”

Slavery was a time-honored institution of human civilization too. If Madison could not have envisioned Colin Powell, does that mean a black man cannot be a general?

Yeah, I was thinking along those lines too.

When has the First Amendment ever been used to justify the argument for gay marriage? It’s always been one of due process and equal protection (14th Amendment).

There’s nothing more amorphous than the concept of ‘natural law’.

I have heard the argument that there aren’t any real reasons to be anti-gay except for religious ones…you know, that the only objection to homosexuality people can make is “God says it’s wrong”, and that in America that’s not a reason to make something illegal.

Assuming that’s true, which I doubt, the Madison should have done a better job. Moreover, if we still held to religious tradition, we’d still be enslaving people.

Look, marriage was always a civil union. The church merely celebrated it. But a church ceremony means nothing without a marriage license. Conversely, a marriage license is valid without a church ceremony.

This existed long before there was a Catholic church – in ancient Rome, for instance. There were always religious trappings, but ultimately, you were married if the state said you were married.

So the basic premise of the argument is flawed; it goes against a thousand years of history.

That whole argument is an appeal to magic. Let’s see some evidence of this “natural law.” Let’s even see some evidence that mores come from religion rather than the other way around.

This Rabbi is just engaging in the shallowest and most fatuous bullshit. He’s basically trying to declare his religious superstitions to be some kind of scientific fact.

Forgive me for pointing out that your OP is quoting a Rabbi about Law - these two disciplines are by definition separate. His premise is an attempt to remove that separation.

Shall we quote a Lawyer about Religion in response?

Here in Indiana, our State Supreme Court (or maybe an Appellate court) ruled against same-sex marriage by saying that the purpose of marriage is procreation. My wife and I have been married since March of 1979, and we have no children, by choice. The court seems to be saying we are not married at all. :dubious:

That’s why Madison (and others) outlined a procedure to amend the constitution when these changes occur.

When SSM gets voted down by referendum in the 30+ states where it is proposed, that tells me that “our” knowledge, values, and attitudes have not changed as much as it is believed.

That’s why we passed the 13th amendment to outlaw slavery. Had there been a clause which said that “no negro or mulatto shall ever be appointed a general in the armed forces”, would you believe that an amendment would be necessary to remedy that situation or should we just ignore it since our values have changed?

What else should we simply ignore when people think it is no longer relevant? How many people should think it isn’t relevant? 90%? 70? 50? 10?

If most people think that $20 is far too trivial a matter for a jury trial in civil cases, should we just increase the amount with no amendment?

I think that was exactly what Madison intended. Separation of Church and State wasn’t exactly how all the cool countries were doing things during the 1700s.

Madison himself undermined a few time-honored institutions of human civilization during his time. The constitution itself was a giant “fuck you” to Monarchies and feudalism.
Even if he didn’t think the constitution protects the rights of gays to get married, who cares? Madison isn’t running this show anymore. He created a constitution giving the people the power to change the law along with changing times and social values. The values of today’s society influence the law, not the time honored traditions of the 1700s.

I suppose I’m anti-American in that I don’t treat the Constitution as scripture. The intentions and values of those in generations passed don’t matter to me one iota. What matters is what is agreed upon today as the best way to interpret the law and the best way to amend it when needed. Appeals to the intentions of James Madison as a person matter to me about as much as appeals to Charles Darwin’s eugenics sympathies.

Politicians are politicians. They aren’t prophets. If James Madison wouldn’t have supported SSM, why the hell should I care?

I think that is the entire point. The best way to interpret the law is NOT agreed upon today.

So when trying to resolve an ambiguity, we turn to basic contract law. We look at the objective intent of the parties AT THE TIME the contract/compact/constitution was signed and attempt to gather the correct meaning from that.

And if we look and see, “Geez, in this situation James Madison said we should not make octoroons eligible to be a member of Congress.” then instead of ignoring that part of our binding contract, we should amend the contract for the changing times by the procedure that is given.

As far as the First Amendment or anything else James Madison wrote, I don’t think it can be used to justify SSM. Nor would I expect it to be used that way. There is some merit to arguments regarding the Fourteenth Amendment and SSM, due to the Equal Protection Clause.

“No State shall … deny to any person within its jurisdiction the equal protection of the laws.” Pretty straight-forward when it comes to treating all people equally, but if we pretend that intent is all that matters, then I suppose this really only applies to people of African ancestry who were slaves themselves or descended from slaves.

Invoking “natural law” to get your way is the same thing as saying that someone else has a “moral obligation” to do what you want them to do–it’s just complete bullshit that means nothing other than a person expressing their preference.

What is the relevance of this scenario to same sex marriage? Did I miss that part of the constitution?