Tuesday, May 10, 2005

Just because I can

Editor's note: I'm posting portions of a comment reply on here because it turned into a nice discourse on the underlying gay marraige issues.

Deciding gay marriage from the courts is an interesting issue. The high court struck down anti-miscegenation laws in the 1960's, ruling that the 14th Amendment prevented states from keeping people from marrying. Whether that can be applied to gays is something that is being hotly debated and contested. I do believe this is going to end up going to the Supreme Court.

Interestingly enough, if the ERA had been passed, it possibly could've given gays more cover for the courts to decide this.

You say that states can decide to do this if they want. But at what point does state inaction preclude a group from having civil rights? At what point does activism end and proper involvement begin? It's a very thin line. The Pledge case, for instance, was a bit ridiculous. "Under God" was added during the Cold War, wasn't really necessary (william Safire wrote a great column on this and how the Pledge used to be. He argued it never should have been altered), but doesn't really harm anyone. I understand atheists don't believe in God, and that's their right, but this is one case where the minority is a really small minority, and the Ninth Circuit was wrong.

However, marriage, as I've argued, is a civil right. Marraiges occured in ancient Rome before Constantine converted to Christianity. Therefore, the institution of marriage is not per se a religious function sanctioned by the state historically. Justices of the peace hold non-religious marraiges, sanctioned just like religious marraiges. Therefore, marraige is a civil function if we empower people other than religious leaders to hold such ceremonies. As a civil, not a religious, function, marraige does not have to conform to religious boundaries.

This leaves a sticky problem. If the courts decide it, people get upset. However, many states, including our own, are barring gays from marrying. The question that is left, the truly important question, is whether marriage is a right that people have. If people have the right to marry, then the courts have to rule on these laws and strike them down, because the laws would violate the Equal Protection Clause. If marraige isn't a right, then the laws are legal, odious as they may be. This is the big issue, the underlying issue, and largely ignored in the political fighting.


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