Since the founding of the United States on July 2, 1776, marriage has been the legal union between a man and a woman. However, with the ongoing challenges to Proposition 8, the above 224 year old definition of marriage is as close as it has ever been to seeing a legal change. In response to California's ban on same-sex marriage, the opposition is trying to overturn Proposition 8, which was passed by a majority of the state's voters.
On January 21, 2010, Maura Bolan of The Los Angeles Times reported on the current activities of this court case of which focus was on the involvement of religion. At this point the challengers are arguing that religious institutions, such as the Catholic and Mormon churches, engaged in the promotion of the discrimination of gays prior to the bill being voted upon. The argument is that the specifically named religious institutions have presented specific religious memos of religious officials as evidence for the discrimination. With evidence of internal religious communications being introduced, the defense argues that it is only the expression of religious bigotry.
With the First Amendment being that Congress cannot pass any laws for the establishment of religion nor interfere with the exercise of religion, I am personally perplexed with the continuance of this case from the grounds of which the defense is arguing. From the article we see that the opposition is crying for discrimination, from which these institutions influenced the outcome of the ban. With that said, I am having a very difficult time seeing the ban on gay marriage as being an establishment of religion nor do I see the religious rights of gays being taken away. If the Constitution's definition did not specify that marriage was in between one man and one woman, then I would say we have a problem of the freedom to exercise. If the particular case of California's ban on gay marriage hinged upon its legislation being heeded by the above-named religious institutions, perhaps there may be a case of establishment. However, the state of California does not endorse Catholicism or Mormonism. These institutions were not the vote for the legislation, the people were. No matter how influential an entity may be, within legal bounds, the vote comes down to the people and it was the voters of California that passed the ban, not religious institutions.
It seems to me that if same-sex marriage is to be Constitutional, then the definition of marriage itself must be changed. However, with the changing of the definition of marriage, this legislation would perhaps lead to a slippery slope. I could only imagine that many court cases such as those that deal with polygamy, incest or statutory rape would reopen. We could take away the use of marriage altogether, however not only would the above issues again be reexamined, but the challengers of the ban are not asking for such a measure. They want the same privileges under the same conditions that a man and woman currently have through marriage. In the end, I again do not see the case as infringing upon the First Amendment, but rather it is a case of social norms from which the likes of banning polygamy were also established.
Tuesday, January 26, 2010
Subscribe to:
Post Comments (Atom)
6 comments:
Since marriage is two contracts in one, why not separate it as in other countries. Let civil authorities 'marry' people for civil purposes and let the religious establishments do their own thing? Why let preacher issue legal, civil contracts? The government structures organizations, such as corporations, LLC's, partnerships, to comply with various tax and civil laws, why not civil control of "marriage" or what ever we want to call it?
I think this blog made some great points. I am personally for the overturn of Proposition 8, but the writer is correct in that it does not seem gays are being denied any constitutional right or that the first establishment and free exercise clauses are being broken. It is a matter of flexibility and modernization. The previous commenter made an interesting point of separating the contracts of marriage. The definition of marriage is the union of a man and a woman recognized by the law, not by the church (or any other religious institution). Yes, the definition of marriage would have to be altered, but who came up with the definition anyway? Times are a-changing and we have to change with them. Why not allow homosexual couples to be married under the law? The church can consider such marriages as illegitimate if they so choose. It is not a religious right to be married; it is a human right.
I believe in the wake of proposition 8, and 22 for that matter, that the issue of same sex marriage has become convoluted. While the author makes a valid point that the decision on proposition 8 is ultimately up to California voters and not religious institutions, I think this misses the central point. Marriage is a term defined to include a man and a woman and cannot not be stretched in any which way. The “slippery slope” argument which is used all too often is not the compelling reason to deny same sex marriages, rather the key issue lies in the phrasing of state laws. One only has to point to select Scandinavian countries to see that the slippery slope argument holds no merit. The real meat and potatoes of the subject at hand are quite straight forward: for the time being California, like many other states, has defined marriage as between a man and a woman, thus whether or not religious institutions place pressure on voters and create an atmosphere of “religious bigotry”, has absolutely no bearing on the matter.
I’m sorry, I don’t quite understand your argument. Marriage was not invented by the Founding Fathers 224 years ago, but rather over 5,000 years ago. In addition, the Constitution does not mention marriage at all, so I’m not sure what you’re considering “the Constitution’s definition” of marriage as between a man and a woman. I don’t have the exact statutes but I’m sure that most states probably do define marriage as between a man and a woman, since it is the states’ right to deal with marriage and similar contract. (This isn’t quite the time to get into the constitutionality of the Defense of Marriage Act, since it restricts the “Full Faith and Credit” clause.) However, the supremacy clause, etc. quite firmly uphold the superiority of the federal government, including the Constitution and its protection of all citizens’ rights, over the states when the two levels have contradictory laws.
Post a Comment