I’ve finally seen some internet writing on gay marriage that makes sense – a reader writing in to Andrew Sullivan, who makes a nice, tempered, intelligent reply. The problem with the gay marriage campaign has been that marriage is not a right, but, as the above reader describes it, “a social institution.” It is a socially approved form of relationship. Society has the right to confer or deny that approval. I believe that it is absolutely imperative for society to assert its power here. Gay marriage is (to me) not a threat to marriage in the least. But a court-established “right to marriage” is a huge threat, because the cultural shape of the institution will not stand against a “right” to marry, especially when marriage can also be interpreted as a crucial part of the free exercise of religion. Very fragile cultural growths such as the equality of women are built on institutions like monogamous marriage. The institution will grow and change over time – naturally and organically – but for a tiny minority to tamper with it invites problems. Sullivan deals with this perfectly – this, he says, is the reason why broad-based social change in attitudes is better than judicial fiat.
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While marriage is not a universal right, equal treatment under the law very much is. To say that society can approve or disprove of social relationships as it sees fit is simply not true if you believe that society must be compelled to act justly. Otherwise, society can easily define marriage as between a white man and white woman. I would expect any court to overturn a law that established that.
Additionally, government is the most social of all social institutions, and any law that banned blacks or gays from running for office should obviously be thrown out in the courts.
It is also important not to conflate the religious institution of marriage with the civil one. The government has no role in a religious marriage, and the argument that marriage is the free exercise of religion would only support the call for looser regulations on marriage. By conflating the two forms of marriage, the government violates the establishment clause, which is designed to protect free exercise.
You have always been a vox populi person on issues like this, but it is the courts’ roll to protect the principals of this nation against the voice of the people when the voice of the people is unjust.
Additionally, it is the voice of the people that created and sustained the court system. You cannot give an institution the power to overrule a law, but take it away when they overrule a law you don’t like.
While I share your thought that it would be nice if gay marriage was passed by public approval, I would no sooner wait for that day than I would have waited for public approval for segregated schools (another social institution).
The voice of the people should never be a mask for bigotry.
By which, dear friend, I by no means suggest that you are a bigot.
No offense taken. I suppose the question looks something like this: the bigotry of which you speak certainly exists, whether we like it or not; what kind of regimen of laws would work which would 1) respect the actual rights of people 2) allow for society to shape itself over time, via its own institutions. This second point, I think, includes, from our perspective, our own right to build institutions which tend to decrease the amount of bigotry in our own society.
And no doubt you are operating with the history of interracial marriage in mind, which was long outlawed and only ultimately permitted in all 50 states by court ruling in 1967. But I will say that the model of the Civil War and Reconstruction – including the later court rulings like Brown v. Board of Ed that required Federal intervention to enforce – is too exceptional and too ill-starred to form a template for social change.
Marriage has in the past been synonymous with 1) cohabitation and 2) sex. Those are rights – no one should be able to stop two citizens from cohabiting or having sex. In fact, government licensing of those two activities was a monstrous impropriety in itself. But marriage no longer is coterminous with those rights. If the Lovings (of the 1967 Supreme Court case) were allowed to live together – they weren’t – and the laws against marriage remained on the books in the southern states, no one’s rights would have been violated, and there would have been voluminous and important public discussion to overturn those laws in recent decades. Those discussions would have had the potential to effect real social transformation. I spoke today with a rather typical Louisiana Republican whose view on race is “I’ve never discriminated against nobody, so stop talking about race. We finished that discussion in the 1960s.” My viewpoint used to be very similar. But now that I’ve seen how my grandparents’ lives have shaped my own – much of this year of my life has been spent in the comfort of the cushion of the earnings of my grandfather – I’m far more aware that personal conduct is only a bit player compared with social inertia and family inheritance.
The abortion issue is similarly clouded and choked off. Do we really need a 77% abortion rate – 77 percent! – in New York City? Isn’t that a little bit high? Can’t we have a discussion as to why it’s so high and what to do about it? (Take a look at http://www.abort73.com/HTML/II-A-abortion_statistics.html – note that I believe that means 77 abortions per 100 live births, not 77 abortions vs. 23 live births).
As for empowering the courts, and trying to pull a California-style overthrow of the vox populi, that sounds like Cheneyism to me. All sovereignty is derived from consent of the governed, i.e. not from power of office.
One more thing. Marriage is now functionally coterminous with certain benefits such as 1) spousal health care coverage 2) hospital visitation rights and health care decision-making 3) de facto inheritance. These problems need to be looked at individually and solved. The provision of health care is a complete mess, I see no reason why hospitals should be allowed to restrict access to any people who are intimate with the ill – and though I admit that proving that is tricky, surely this problem can be fixed. I contend the same thing with regard to inheritance. This last perhaps merely requires people to grow up and make a will.
This whole national debate is overwrought. If the state sanctions marriages (check) and confers benefits to the parties involved (check check) then anyone should be able to marry anyone.
Whatever church or cult you belong to doesn’t have to recognize it.
What more need be said?
As an aside, I’m in New Orleans right now, though I’m just passing through.