Saturday, May 17, 2008

Activist Judges At It Again?

A few nights ago I wrote up a post exploring some of the arguments against gay marriage from a purely legal perspective, in response to the California ruling. After writing it I decided not to post it, for three reasons:

1) I'm not an expert at law, so my attempts to explain things from a legal perspective are probably incomplete at best.

2) The issue of gay marriage has been debated at length in the bloggernacle, from both moral and legal perspectives. I don't really have much to add to that.

3) Even though my intentions were not to spark controversy, I had a feeling my opinions might, and the goal of my blog is not to rehash endless debates.

So in the end I didn't post it, but I would like to throw these questions into the mix of perspectives currently being explored elsewhere:

1) I agree with the church, from a moral perspective, in its stand against gay marriage. I oppose gay marriage and would vote for a constitutional amendment against it. However, given that currently there is no such amendment, is it going against the church to question the constitutionality of banning gay marriage? In other words, can we separate the moral arguments and legal arguments? Can I say: "X is morally wrong, but it is unconstitutional to ban it?". Or, if I want to be in line with the church, do I have to conclude that judges that side with gay marriage must be wicked?

2) At what point to we recognize that we are fighting a losing battle? Is it obvious at this point that it is only a matter of time before we lose, both in the court of law and the court of public opinion? Is there still hope for victory, or are we only fighting to prolong the inevitable? If it's the latter, is it wrong to advocate a scorched earth policy (ie. get the government out of marriage entirely)?

(Note: If the subsequent comments get too controversial, I'll start deleting them and/or closing comments. As I've already stated, by goal is not to bring the debate occurring elsewhere onto this blog. I've already tempered my own opinions to try to avoid that. I'm really only interested in the specific questions I asked above.)


Anonymous said...

I think it's great that Same-Sex Marriage is now legal in California. I think that having a same sex marriage ban is as silly as banning interracial couples from marrying, banning women from voting, or banning colored people from using the same restrooms or drinking fountains as caucasian people, or ever banning colored people from sitting at the front of a public bus. It's the 21st century and we need to get with the times and learn from our mistakes in history, not repeat them.

Steven B said...

I think Kaimi gave a good answer to your first question on the same thread to which you linked. Kaimi's response is here:

As to your second question, I believe it is inevitable because it is a matter not of morality, but of equality. Would you advocate the scorched earth approach simply because you want to discriminate, based on your moral viewpoint?

Sofal said...

Anonymous: This is about homosexual behavior, not homosexual attraction. The "born that way" argument doesn't apply here. Try something else.

Mike said...


Thanks for the link. I had stopped reading comments there after it started to get heated. But now I've read most of the thread. Although I think Kaimi goes beyond what I am trying to say, his comment is applicable. However, the response that he got does not reassure me that most members make a distinction between the moral and the legal issues surrounding the issue. But the difference between what Kaimi was trying to say (I think), and my question is that I would like gay marriage to be illegal, but a recongize that the arguments of the other side are pretty good, and I might be on the losing side, constitionally.

Secondly, let me be clear I wasn't trying to advocate the scorched earth policy. I'm simply exploring options, and avoiding putting too much opinion into it because honestly, I don't have the legal expertise to sufficiently defend my opinions. But to answer your question, I think we have to go back to why someone might be opposed to gay marriage. There are 2 reasons. The first is that they think it is wrong and sinful, and want to ban anything wrong and sinful that they can. Of course that's not much of a reason.

The second is that they would view homosexual relationships to have a negative impact on our society. Again, my intent is not to debate whether that view is correct or not. So, if they view homosexual relationships to have a negative impact, they would want to do whatever possible to discourage them. Allowing gay marriage, in their view, encourages homosexual relationship by legitimizing them. So, if we assume the anti-gay marriage crowd is eventually going to lose, what's the next best thing for them?

If marriage was originally intended to promote an institution that was beneficial to society, but that benefit is not negated, that seems like a logical argument for the scorched earth policy. So the short answer, no, I would not support it just so appease my own desire to discriminate. At least that would not be any better a reason to support it than it would be to support a ban on gay marriage.

Mike said...

Sorry, that should have been "now negated" in the last paragraph. All of my other mistakes I think you can figure out. I was posting in a rush.

Steven B said...

"If [civil] marriage was originally intended to promote an institution that was beneficial to society, but that benefit is now negated."

What do you mean by "that benefit is now negated?"

Mike said...

Marriage traditionalists view a heterosexual marriage as beneficial to society, and a homosexual marriage as detrimental to society. So if gay marriage is legal, at least some of the overall benefit on society of government recognized marriage is negated by the fact that some of those marriages are homosexual marriages. (This is not to say the benefit of any individual marriage is negated--I'm talking about the cumulative affect.) Some might say all of the benefit to society is negated, in which case they might support measures to end the government recognition of all marriages since there is no longer a reason to promote marriage as it is defined by the government.

My point is that, given the anti-gay marriage position of the church, and also what appears to be the inevitability of defeat, the idea is defendable (which I suppose is what I'm trying to do). Although I'll re-iterate that personally I'm not sure if I'd advocate it.

Steven B said...

"So, if we assume the anti-gay marriage crowd is eventually going to lose, what's the next best thing for them?"

Perhaps they should move to Gambia.

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