Cherrypicking religion is something theists are very good at, almost universally. It’s like a mix and match set - pick what appeals to you, ignore the rest.
You know, it wasn’t that long ago when interracial marriages were illegal in many states, because they weren’t “part of the created order.” And yes, it was argued that blacks had the same rights as whites: to marry someone *of the same race. *And I’m sure there were many people who considered interracial marriage to be an “ontological impossibility,” just as “the freeing of slaves” had been an ontological impossibility of previous generations.
But we’ve been through all this before, haven’t we? I’m just very tired of hearing the same tired platitudes *ad nauseum, *and having to respond to them as if they had the dignity of a rational argument.
For what it’s worth.
Correct. Not too long ago, slavery was part of the “created order”. The White Man’s Burden and all that.
(b) and (c). I don’t beleive Hindus are sinners of course, being an atheist, but a christian must surely believe that (i) Hindus worship false idols (I picked on hindus because of their iconography - it is aguable whether buddhists or moslems worship false idols) so that (ii) they are sinners, well the ones that know about JC anyway.
It seems to me that if christians are going to claim that marriage should be between a man and woman, they need to state why. Because the bible tells us it will be a sin otherwise they probably will answer (dont worry about any other rationalisations - in the end it comes down to this). Thats where my OQ came from - if this sin then why not other sinners. What ever happened to separation of Church and state anyway?
I am not sure that the bible anywhere says that marriage should only be between a man and woman, and only for procreation. Otherwise infertile and old couples should not get married. It does say that men and women should not sleep with the same sex. Separate issue
It seems important to separate the several functions of marriage
(i) religious and (ii) social
and (iii) legal
If homosexuals want to join in marriage to secure property and inheritance righhts or tax breaks, they should. I am free to marry anyone for those reasons two even if I dont love her or plan to have children or sex. e.g. anna nichol smith springs to mind. Adoption is a completely separate issue.
I don’t know. But then, that phrase doesn’t appear in the Constitution, so I’m not sure where the question’s headed.
As for phrases that do appear in the Constitution, state regulation of or restrictions on who can enter into civil marriage does not violate the free exercise clause unless your religion requires you to marry someone of the same (or any) sex and to secure civil recognition for it. I don’t know of any religion that has such tenet.
State regulation of or restrictions on who can enter into civil marriage does not violate the establishment clause because the state is not establishing a church or prescribing that the cultic practices of any particular sect be practiced by all persons (i.e., requiring citizens to enter into Hindu marriages).
We’ve discussed this before: The fact that a public policy/law reflects, is consistent with, or is directly inspired by, the views of one or more religions does not, by itself, say anything about the constitutionality of such policy/law. Many or most public policies/laws are informed by prevailing views of morality. Prevailing views of morality are, in the U.S., and always have been, heavily informed by principles of various religions. Attempting to de-legitimize certain public policies by faulting the fact that they arise from or are consistent with religiously-motivated moral precepts is not only an instance of the Genetic Fallacy, it is a recipe for attacking or nullifying most of the laws on the book.
This is entirely valid, as an assertion of the valid separation doctrine. Now, what “legitimate government function” is fulfilled by a demand that civil marriage be limited to one man and one woman, regardless of the feelings of the prospective participants therein?
Almost every argument I’ve seen on the subject violates the Establishment Clause, but enacting the tenets of a given belief. The others are, IMO, a simple appeal to traditionalism – “this is how we’ve always done it, so we have to keep doing it that way.” And I trust you’ll concede that that is hardly a valid legal maxim.
Hmm. Where are you getting “legitimate government function” from? Caselaw? I don’t remember that language in either Lemon or Agostini.
The state has a recognized interest in encouraging/power to encourage certain forms of familial relationship. For instance, the state may offer tax advantages to couples with children, so that the population may be maintained/increased (whether for military readiness or to ensure a continuing tax base). The state may require that a husband who divorces his wife pay child support and alimony, whether to discourage hasty divorce or to prevent the wife and child from going on the dole. The state may require that parties to a marriage be of a certain age, based on a popular consensus that marriages between persons who are too young are unlikely to be successful, from the standpoint of society. So, there are plenty of recognized “legitimate government functions” (or “secular purposes,” to use Lemon’s language) in defining, and limiting, classes of persons who may marry, and the terms on which this marriage will be recognized. YMMV as to which the government should adopt, but “YMMV” is not the same as “that’s unconstitutional.”
Your bald assertion that the establishment clause is violated by “almost every” argument for limitation of marriage rights is not one that has ever found a shred of support in the courts – in fact, I don’t know that many (if any) plaintiffs have bothered trying this one on. Any reason we should take your apodictic conclusion as settled law?
Or, explain how your principle works here: “Thou shalt not murder” is the tenet of the Christian church. My state has a law that prohibits you from murdering. “Prostitution is wrong” is a tenet of the Sikh religion (is it?). My state forbids prostitution. Both of these laws therefor clearly violate the establishment clause.
I’m not seeing why your argument is any less fallacious than these, which, like yours, would de-legitimize any law (except for the ones with which you agree, of course) that parallels or is inspired by any religious doctrine.
Listen, Huerta, my world is not limited by the walls of a courtroom. When I say that “virtually every argument…violates the Establishment Clause,” I’m not talking about what you’re praying a court to do; I’m talking about Joe Schmoe waxing eloquent about “what God ordained marriage to be.”
If “legitimate government function” doesn’t suit you for the lowest level of scrutiny, feel free to substitute the phrase that does – that’s what I’m referring to.
I concur that the state may, for _____ (“legitimate reasons anchored in reality”; feel free to fill in the proper Constitutional-law phrasing), limit those who may marry. Marriage is, however, a right (Loving) which therefore may not be arbitrarily denied – which is where I’m looking at levels of scrutiny.
Now, having gotten that far, I reiterate my request to give me a reason, not founded strictly in religious belief (I presume you can accept that an atheist or agnostic might have good reasons for objecting to murder or prostitution), and underlain by the appropriate nexus according to lowest-level scrutiny, why marriage should be limited to heterosexual monogamous ones. I will not accept progeneration, because sterile persons, women beyond the age of childbearing, and couples who have made it clear they have no intent to have children, are not debarred from marriage.
If there is a valid reason, I’ll be happy to listen to it. But I want to hear one, not huff-n-puff about the state’s interest in ensuring that 12-year-olds don’t marry or the elderly widow marry her cat.
Noble. Stirring. Irrelevant.
You don’t know what (if anything) I’m praying. Fact is, I don’t have to “pray” a court to do anything. My statement was that no court ever had done anything similar to what you assured us of: find that limitations on marriage violate the establishment clause. In a precedent-based system (which is what we live in), that is of course significant in evaluating someone’s absolute statement that a particular law “violates the Establishment clause.” To make your statement less intellecutally dishonest (because people who read discussions of law are entitled to understand where your statement of “constitutional violations” are coming from, which in your case, is not actual law), you need to write it: “virtually every argument . . . violates the Establishment Clause, as interpreted by me only, so far.” Say that, then try to persuade others to join your lonely crowd of Establishment Clause interpretation, and see where the chips fall. Me, I think “virtually every argument” for such marriage limitations violates, um, the Alien and Sedition Act. My belief has precisely as much legislative and precedential support as yours, which (and I know this isn’t true in your preferred, but so-far-nonexistent, world of because-I-say-so jurisprudence) matters, a lot, in a common law system.
Oh Lord (no offense intended). Your language indicates that what you’re groping at here is a rational basis/equal protection claim. Why didn’t you say so in the first place? What I objected to initially was only your inapt (and ill-advised) foray into the First Amendment, which I assure you is not the easy route for the result you’re seeking; E.P. and S.D.P. are where almost anyone who’s tried this tries. Why confuse the issue by mixing and matching E.C. and E.P. (unless your hostility to religious persons having their moral views reflected in law is so overweening that you wanted to make the unlikely-to-succeed Establishment Clause attack just for spite?)?
Okay, so if I can give an example of a law against homosexual marriage that isn’t founded strictly in religion I win? How about public distaste for homosexual behavior? That doesn’t count? Why? Because it’s always religiously motivated? Nonsense. Plenty of agnostics and atheists are and have been intolerant of homosexuality. “But public distaste is not a sufficient reason.” Wrong. “Rational basis” is an extremely low hurdle. We know, for instance, that public nudity laws are 100% enforceable, even though there’s no serious basis for claiming that one adult is harmed in anything more than an ick-that’s-nasty way by seeing another person naked in public. We know that there is nothing intrinsically wrong in eating a dog, given that we also eat cows, yet the state can certainly ban dog-eating, based solely on the public’s distaste for it, and allow cow-eating.
Hmmm. Let’s go on. How about the many not-terribly-religious (I’m thinking Japan, say) or explicitly-anti-religious socialist states have outlawed homosexual conduct or refused to sanction “homosexual marriage,” based on grounds of public order, or aesthetics, or procreation/family life encouragement (I know you’ve declared this off limits, but your opinions are not equivalent to the full range of what could be a rational basis), or bourgeois decadence, or whatever. Of course, you do not have to adopt any of these rationales. It is simply that it is not open to you to dispute that there are plenty of totally non-religious (let alone, not “strictly religious”) rationales that have in fact been and would be invoked in support of such policies, and that would most or all very likely pass the (very low) rational basis test.
Cue the goalpost moving, I suspect: “I meant a non-religious basis that also wasn’t simply based on secular aesthetic distaste, and you can’t invoke public health or fertility, and it can’t be illiberal or unkind either, and . . . . [conclude with] and it has to be one that is 100% consistent with Polycarp’s personal policy preferences.” Yeah, you got me beat there, if that’s the game we’re playing.
No need to invoke the ridiculous examples, which weren’t by the way the ones I invoked. Mississippi lets physically mature women marry at 16. Massachusetts makes them wait till they’re 17 (or vice versa). One of those laws must clearly be unconstitutional!!! I’ve been robbed of equal protection (or – violation of the Establishment Clause, 'cause those Puritans in Mass. obviously want to restrain female sexuality in accordance with their foul religious doctrine)!
Nah. Each state has invoked a different rational basis for a somewhat different policy on who can marry. The rational basis test is very easy to meet. Each state’s law is clearly constitutional, and I can’t honestly say that either one is right or wrong, quite apart from the Constitution.
I am sorry you are unhappy that the Constitution allows citizens and States to enact policies (that you do not personally agree with) that not only don’t destroy religion, but may be consistent with and directly inspired by it, and that we do not have a Republic in which any law (except the ones that Polycarp likes) is ipso facto unconstitutional if it can be shown to be based upon religiously-inspired values. But that is the world in which we live, for now.
Huerta, you do realize that your lengthy post amounts to little more than saying “I don’t have to give a reason, because the Rational Basis test is easier to pass than the Laugh Test.” Very compelling. Out of curiosity, dispensing with legal niceties, do you suppose you could present a reason that would pass the Laugh Test?
Thanks, Gorsnak. I had decided to abandon this thread, since there are other forums I can go to if I care to participate in outsniding contests. I’d thought I was asking an intelligent question – apparently, Huerta cannot abide anyone with a different worldview and less familiarity than he with the niceties of constitutional tests.
So let him play with his Lemon test.*
- Led Zeppelin allusion intentional.
Wait a minute. The reason I don’t get into the rational basis test is because I mentioned it only in disabusing Polycarp of his notion that there is an Establishment Clause issue at stake (definitely the wrong tree up which to bark on this particular issue). I think that’s enough of a hijack already, and the EP arguments have been made elsewhere.
If you consider constitutional jurisprudence “legal niceties,” that is your prerogative. I’ve already referenced examples of non-religious, non-laughable, reasons that could be and have been widely invoked as bases for not lending state support to “gay marriage.” The burden would be on the challenger to prove that the many societies and millions of citizens who had found those non-religious reasons sufficiently rational were nonetheless irrational and laughable, because you know better and because the rationales advanced would stand no chance of advancing the stated societal purposes. And that’s an uphill battle (one that I’ve already anticipated the challengers would dodge by going on to define as per se illegitimate not only rationales that were religiously-inspired, but also any that were aesthetically-inspired, law-and-order inspired, public-health inspired, ad infinitum).
The problem came when someone (not me) chose to hijack by invoking constitutional principles into what the OP, I think, intended as a question about the internal logic of Christian theological views. Necessarily, this introduces and requires application of actual (as opposed to imagined) analysis of how Establishment Clause procedure and substantive analysis works (or, as you’d put it, “legal niceties.”).
I’m happy to depart from the quasi-legal hijack, because I’ve shown what I meant to show, and because I also know that the reason for Polycarp’s (mis)-invocation of constitutional principles in a non-constitutional debate was not serious interest in proving a defensible legal case. Rather, it smacks of the much more common eagerness to bootstrap an argument on a non-constitutional issue by using “unconstitutional” as an intensifier, signifying “No, but I really disagree with your religious and policy preferences, and you’re not just wrong, you’re . . . you’re . . . unconstitutional!”
You see it all the time.
Moral: One can avoid legal “niceties of constitutional tests” by not declaring unsustainable “constitutional” positions where they don’t fit anyhow. (Alternate Version: Don’t play the constitutional card if you don’t like the rules of the game).
Well, no, you haven’t. Here are the “reasons” you have referenced:
-
“public distaste for homosexual behavior”
-
“public order”
-
“aesthetics”
-
“procreation/family life encouragement”
-
“bourgeois decadence”
You’re going to have to indicate which of these you think is non-laughable, because I’m having difficulty determining how some of them amount even to laughable reasons. How in the blue blazes is allowing SSM related to public order or aesthetics? Or bourgeois decadence, for that matter? So what are we left with? Lots of people don’t like gays. Lovely. Antipathy isn’t a reason, it’s an emotional state. I asked for reasons. Refusing to grant rights to people you don’t like isn’t reasonable, it’s the textbook definition of bigotry. If such an attitude is common, it may win elections, but it doesn’t thereby become reasonable. And finally we have the old procreation canard, which has the semblance of a reason, but doesn’t pass the laugh test, since (A) underpopulation isn’t exactly our most compelling problem, (B) it’s rather unclear that refusing to allow gays to marry each other will result in their breeding like bunny rabbits, (C) some gays have kids, (D) some straights don’t, (E) allowing gays to marry won’t result in a single child not being born who otherwise would have.
Or did you think that the Laugh Test required you to make me laugh? In that case, you’ve sailed through with flying colours.
You know, I have had discussions here with Dewey Cheathem Undhow, Bricker, Minty Green, Sua Sponte, Jodi and a number of other Dopers-at-Law, and nobody has ever had a problem with the idea that in Great Debates someone might utter an opinion that such-and-such proposed issue or question violates such-and-such clause of the Constitution, there being some nexus between the assertion and the clause in question as worded or as presently interpreted.
There is a forum called General Questions for questions with absolute, determined answers, e.g., is it legitimate under the Constitution to have a dual system of public schools to which students are assigned according to race?
A reason advanced by a citizen for a proposed law which is founded exclusively in his religious beliefs is a reason in violation of the Establishment Clause, under any sensible reading of that clause as construed by the courts in the last fifty years. Clearly, your assertion appears to be that “rational basis” can be based in whatever opinions the legislature cares to come up with, however divorced from individual rights they may be, and if that’s what you’re saying, I will have to accept it, much as I dislike the idea personally. But I was hoping that you might deign to give me some logical grounds not founded in religious belief or sheer traditionalism.
But instead, you decide to accuse me of intellectual dishonesty and give me an eighth grade lecture on “Unconstitutional doesn’t mean really bad.”
I’m well aware that something can be constitutional and distasteful, or unconstitutional and a fine idea otherwise. But clearly your ego will not allow you to discuss these issues rationally and courteously.
I’m going to be selective, because this really is a unfair to the OP:
Refusing to grant social sanction (in the form of affording civil recognition or legimitization) to conduct deemed distasteful, on solely aesthetic grounds (whether the conduct be homosexual sex, or public nudity, or eating house pet-type-animals) is a well-recognized vehicle for expressing legitimate public policy. In short, the “ick test” can indeed be among the rational bases, or can be the sole basis, for entirely constitutional policies against public nudity, or “SSM.”
You say so. States may differ. “Social security won’t be funded, and the military won’t be replenished, if the population drops precipitously (so reasons the govt. ) Marriage (so they continue) costs money, lots of it, for society to recognize (in the form of tax breaks, spousal benefits, a family court system. Certain classes of marriages yield more childbirths than others (heterosexual marriage: I don’t know, 60% yield rate, including the barren and elderly couples; “SSM,” approximately . . . a whole lot less). Therefore, we’re not going to take the expensive step of extending marital rights to an additional group that confers comparatively fewer “marital benefits” (as we see them) back on society.” But why didn’t they exclude the barren and elderly too? Because the state can decide what level of micro-management it deems appropriate in its sifting process.
OF COURSE you and the bien pensant SD crowd will disagree with this state’s particular policy analysis. That goes without saying (though I’m sure someone will eagerly say it). But the above is yet another rational, by-the-numbers, non-religious-based, possible basis for such a policy. You have to understand (and really, I wasn’t the one who brought rational basis up) that “rational basis” DOES NOT mean “basis that I agree with.” It effectively means “basis that some non-trivial proportion of the educated population could find somewhat persuasive.” Don’t like it? (A) You should try to persuade the U.S.S.C. to change its standard; (B) Better, couch your arguments in terms other than “constitutional” ones.
Now, back to the OP.
We got off on the wrong foot with the E.C. stuff, and if you’d made it clearer that you were stating a (very novel, but that’s okay) theory, rather than anything established yet, it could have been an interesting debate (a bit off-topic).
I’ve tried also to answer your question (and I don’t think, btw, that rational basis is quite as content free as you pessimistically surmise above). To take one example, do you disagree with me that the “ick test” can be rational? I think it can, and the courts seem to agree in the case of dog-eating, public nudity, etc. Lots of our laws arise from visceral reactions to particular conduct (and in some cases, have no other basis). I don’t think those laws are per se invalid (they may be bad ideas, which is a very different question).
I hesitate to invoke the term “slippery slope” here, but I must point out that if we go around making laws against what people find “icky”… well, I just don’t know what would happen. What happens in a person’s bedroom has nothing to do with ickyness to anyone else.
If they want to eat dog meat, well, I can’t think of a single reason why dog meat is worse than cow meat or duck meat (other than that I would imagine dogs would be fairly stringy and harder to breed for food production purposes… but that’s getting away from the topic).
:shrug: The OP’s been answered. Christians (or at least, some of them) oppose SSM and not the marriage of other unrepentant sinners because it’s the actual being in a conjugal relationship which constitutes sin in the case of SSM, whereas the happy serial killer couple’s sinning is unrelated to their marriage. Of course, there is the further question of why many Christians who oppose SSM do not oppose allowing divorcees to remarry, since that is also a case where the conjugal relationship is itself sinful, and this is far more directly stated in Scripture than anything about same sex relationships is. Of course, some Christians who oppose SSM also oppose divorcees remarrying, but don’t bother wasting effort fighting it because they recognize that it’s a politically unwinnable fight.
It’s not a terribly difficult thing to understand, and I expect we agree on this matter for the most part.
If marriage is a right, and most would think it is, then it’s being denied not on the basis of conduct, but on the basis of orientation. There is nothing a gay person can do which will result in society allowing him to enter into a meaningful marriage; ergo, conduct has nothing to do with it.
Moreover, your “ick test” as a basis for public policy has three glaring weaknesses. First, all the cases you cite are cases which don’t involve any basic sorts of rights. No one has a serious crimp put into their life by not being able to eat dogs. It is common practice to require more substantive reasons for more substantive restrictions on people. You’ll look a long time, for example, to find anyone who thinks that the “ickyness” of interracial relationships constitutes a reason to bar them, though once people argued just that. Third, allowing arbitrary public antipathy as a legitimate basis for public policy is a slippery slope. This is the sort of reasoning that leads to things like institutionalized racism a la Jim Crow, to incarceration of loyal citizens based on their ancestry, a la WWII internments of Japanese, to antisemetic nastiness throughout history including notable incidents this century. If you’re going to deny people full participation in society, which is what you want to do, you damned well better be able to provide something beyond “I think they’re icky”, which as I said is not a reason, but merely an emotional state. One can provide a justificatory basis for a reason; ickyness is merely a visceral response.
So you say, but this whole thing is a giant morass of inconsistency. The state can be inconsistent, you say? Sure it can. It just shouldn’t expect people to refrain from criticizing it for being inconsistent. Your evasiveness about “levels of micro-management”, etc., does nothing to change the fact that a young lesbian marriage is far more likely to yield children than any post-menopausal straight marriage. If the government really wants to encourage reproduction or discourage childlessness, barring SSM is a truly horrible way to go about it. Seriously. It makes straight couples no more likely to have kids, and it makes gay couples less likely to have kids via adoption or surrogacy, for fear of losing custody and the like.
Moreover, your economic argument is balderdash, since children aren’t the only return the state gets from marriage. It also gets stronger families, people taking care of each other rather than living on the dole, etc. And frankly, I don’t even see how government recognition of marriage does anything to encourage people to have children. Do you really think that a typical straight couple would have fewer kids if the government didn’t recognize marriages? Really? Seems rather unlikely to me. They’re more likely to be encouraged by child tax credits. Infertile couples might be less likely to have kids, again because of custody worries and the like, but all that follows from that is that it’s infertile couples who are most likely to have kids only if they’re allowed to marry, which if anything supports SSM. And finally, if it’s population growth you want, there’s lots of people who’d like to immigrate.
Face it. You have no principled argument here. Your best cases are unreasoned aversion on the one hand, and on the other this silly nonsequitor about reproduction.
[QUOTE=Gorsnak]
:And finally, if it’s population growth you want, there’s lots of people who’d like to immigrate.
QUOTE]
yeah, but they woudn’t be real 'murkans now would they?