The recalcitrant Ms. Davis, arbiter of who may or may not be married in Rowan County, Kentucky, has this date been jailed, appropriately enough I think, for contempt of court.
As all know, she claims God Himself decrees that she refuse to follow the law. This is, presumably, the same God who decreed she should be divorced from three previous husbands, leaving one to wonder why God, who apparently takes marriage so seriously that He will suffer it to take place only in certain cases, has no problem with it being entered into and then dissolved so frequently. Serial marriage is it seems perfectly fine with the Deity, provided it is between a man or a woman. This particular county clerk evidently has no problem with it either.
Now as far as I am concerned, Ms. Davis may divorce her current husband and his successors, if any, and this won't necessarily mean she is a bad person or even a sinner. I don't mean to castigate her or others who claim that they may ignore or break the law whenever they think God wants them to as immoral. But I do mean to say that she and they are seriously misguided and thoughtless, and that such a belief is potentially dangerous.
It's difficult to know where to begin in addressing this kind of belief. It seems almost self-evident that if people are allowed to refuse to follow the law as it impacts others and the rights of others because of their religious beliefs, the rule of law doesn't exist. I don't address laws which apply only to the rights of believers. In that case, there may be some basis for asserting a First Amendment right. But I don't think the First Amendment contemplates the religious limiting the rights of other persons by virtue of claimed religious beliefs. Thus, I doubt any court will hold that someone whose religion mandates that, e.g., someone of a certain race, or disabled people, cannot marry need not issue marriage licenses. Happily, we haven't reached that point (yet?).
I think a religion the free exercise of which requires that legal rights be denied to others is a curious religion indeed. I suspect that if this woman was Muslim, and maintained that she could not comply with her legal duties because of some Islamic belief, neither Mr. Huckabee nor Mr. Cruz nor anyone else would be claiming her rights were being violated.
But at this time I wish to focus on what I think is an issue which must be addressed before others when such claims as those made by Ms. Davis are made. For such as me, an initial question is...why would God care who gets married according to the law? Assuming it's God's law that certain people shouldn't get married, and God's law is superior to that of the law of humans, why does it matter if the law of the United States or any other nation allows them to marry? The marriage would be valid only as far as the secular authority is concerned; it wouldn't be truly valid; what's valid is what God decides is valid. So, the marriage licenses issued by the state would be bogus in the eyes of God, and God's eyes are the only eyes that matter.
Why would God decree that clerks shall not issue licenses which are clearly bogus? None of those prohibited by God from being married would really be married in any case. Even if God is the highly officious being contemplated by the Abrahamic religions, God isn't likely to be concerned regarding anything which is not the case.
It would seem that God, or those who believe that they stand in the shoes of God, as it were, should be concerned with marriage licenses only if they result in marriages God has prohibited. If they don't, there should be no concern.
As there plainly is a concern, however, it would seem that God and those who claim to serve him in this respect believe that the marriage licenses in fact create a forbidden marriage. That is problematic for the religious though, as that is to impute some kind of validity to secular marriage even if it is contrary to God's will. In other words, the refusal to issue marriage licenses would arise from the belief that the licenses are valid regardless of the will of God. I doubt that's a position anyone who would claim that gay marriage is forbidden by God would want to take.
Ms. Davis and others in similar governmental positions don't cause people to be married, they don't bless the marriages of people. They merely issue licenses. They process certain paperwork when certain fees are paid and certain requirements set by the law (not by them) are met.
So is it God's directive is we cannot issue marriage licenses to gays, regardless of the fact those licenses are not valid...are in fact invalid? That would be to claim the processing of certain paperwork is in itself sinful, against one's religion. God becomes in that case a kind of Divine Bureaucrat.
It's astonishing the extent to which certain of those who claim to believe in God and follow his laws manage to demean God when they do so.
Showing posts with label Gay Marriage. Show all posts
Showing posts with label Gay Marriage. Show all posts
Thursday, September 3, 2015
Monday, June 29, 2015
Definition Uber Alles: The Obergefell Dissent
I am puzzled by the dissenting opinion in this case. The majority opinion is, I think, too rhapsodic but ultimately legally sound. The dissent on the other hand is neither, and I think borders on being weird. I can do without rhapsody in the Supreme Court, but am disturbed by oddity in that institution. Both rhapsody and oddity are of concern, as the appearance of either of them in a legal opinion is a sign that the opinion's author has departed from legal analysis and strayed into the Never-Never Land of the zealot. But oddity is of particular concern when it comes to the consideration of legal rights.
The dissenters are in a difficult position because it cannot be doubted that the ability to marry has been recognized as a legal right protected by the Constitution since at least 1962. So in order to dissent, they must necessarily maintain that legal right is not available to certain people who are as much protected by the Constitution as any other American citizen. Normally, such rights are available to all subject to forfeiture, generally by virtue of conviction of a criminal act. However, it can't be maintained that gay people seeking to marry have all been convicted of a criminal act (no, sodomy doesn't count as criminal anymore under the Constitution).
The dissenters are thus reduced to contending, in effect, that the legal right to marry is a right that can be exercised only by particular people, but that others are excluded from exercising this legal right not because they have forfeited that right but because of a definition. According to the dissenters, marriage is a legal right that can only be exercised by one man and one women because that is what the definition of "marriage" requires.
The dissent acknowledges that the definition of "marriage" may be changed, though. The dissenters think, however, that the people through the legislature must change the definition, and not the court. Thus we find in the dissent references to democracy and the will of the people which are unusual in a Supreme Court decision, as the Supreme Court has for many years disregarded the wishes of the people in upholding and interpreting the law when it deems it necessary to do so to uphold the Constitution, and this is indeed its function in our system. The dissenters have all of them done just that themselves. They simply abhor doing so in this case.
By acknowledging that the definition of "marriage" may be changed at all, however, and that if changed the legal right of marriage may be extended, the dissent creates problems for itself. It makes the existence of a legal right dependent on something that may change, first, and this is something which the dissenters may find hard to stomach in other cases. There is in addition a danger in letting the people, or the legislature, define what constitutes a legal right, as one hopes the dissenters recognize, even if that recognition would hint that they aren't being entirely impartial in this case. The Founders were well aware of the potential for a tyranny of the majority, and took steps to avoid it; one of those steps was the creation of the Supreme Court.
There is also a danger in sanctioning the idea that it is possible to "define away" a legal right. If one accepts that the Supreme Court must in all cases accept what a legislature mandates as a definition, it would be easy enough for a legislature to adopt definitions which would restrict existing legal rights or create new ones by adopting a particular definition.
Perhaps it can be argued that in the case of "marriage" the dissenters refer to a definition of long standing, not dependent on legislative whim. But the same could be said of "property" which until recently had been defined for many years as including certain human beings.
Now there is talk of civil disobedience, and fears of restricting religious freedom. There is even talk of the Supreme Court defying God's law by those who think of God as obsessed with human sexual relations (God as voyeur, as it were). But the majority opinion makes it clear that should not be a concern. This decision should properly be considered as applicable to marriage as a legal concept, which is in effect a contract or partnership. Religions may consider it whatever they like, and require whatever rituals they think appropriate governing what they think is a marriage. That should not be a concern of the law. Similarly, it should not be a concern of religions what the State provides as governing this particular kind of contract or union.
I think it likely that we will not see the same kind of hysteria we saw in the days when the courts mandated segregation. Acceptance of gay marriage has spread with remarkable celerity, and, frankly, those who oppose it and oppose modern society generally will die off soon enough, to be replaced with the less intolerant, or will withdraw from that society to live and die in relative isolation, for good or ill.
Perhaps the times really are a-changin', this time.
The dissenters are in a difficult position because it cannot be doubted that the ability to marry has been recognized as a legal right protected by the Constitution since at least 1962. So in order to dissent, they must necessarily maintain that legal right is not available to certain people who are as much protected by the Constitution as any other American citizen. Normally, such rights are available to all subject to forfeiture, generally by virtue of conviction of a criminal act. However, it can't be maintained that gay people seeking to marry have all been convicted of a criminal act (no, sodomy doesn't count as criminal anymore under the Constitution).
The dissenters are thus reduced to contending, in effect, that the legal right to marry is a right that can be exercised only by particular people, but that others are excluded from exercising this legal right not because they have forfeited that right but because of a definition. According to the dissenters, marriage is a legal right that can only be exercised by one man and one women because that is what the definition of "marriage" requires.
The dissent acknowledges that the definition of "marriage" may be changed, though. The dissenters think, however, that the people through the legislature must change the definition, and not the court. Thus we find in the dissent references to democracy and the will of the people which are unusual in a Supreme Court decision, as the Supreme Court has for many years disregarded the wishes of the people in upholding and interpreting the law when it deems it necessary to do so to uphold the Constitution, and this is indeed its function in our system. The dissenters have all of them done just that themselves. They simply abhor doing so in this case.
By acknowledging that the definition of "marriage" may be changed at all, however, and that if changed the legal right of marriage may be extended, the dissent creates problems for itself. It makes the existence of a legal right dependent on something that may change, first, and this is something which the dissenters may find hard to stomach in other cases. There is in addition a danger in letting the people, or the legislature, define what constitutes a legal right, as one hopes the dissenters recognize, even if that recognition would hint that they aren't being entirely impartial in this case. The Founders were well aware of the potential for a tyranny of the majority, and took steps to avoid it; one of those steps was the creation of the Supreme Court.
There is also a danger in sanctioning the idea that it is possible to "define away" a legal right. If one accepts that the Supreme Court must in all cases accept what a legislature mandates as a definition, it would be easy enough for a legislature to adopt definitions which would restrict existing legal rights or create new ones by adopting a particular definition.
Perhaps it can be argued that in the case of "marriage" the dissenters refer to a definition of long standing, not dependent on legislative whim. But the same could be said of "property" which until recently had been defined for many years as including certain human beings.
Now there is talk of civil disobedience, and fears of restricting religious freedom. There is even talk of the Supreme Court defying God's law by those who think of God as obsessed with human sexual relations (God as voyeur, as it were). But the majority opinion makes it clear that should not be a concern. This decision should properly be considered as applicable to marriage as a legal concept, which is in effect a contract or partnership. Religions may consider it whatever they like, and require whatever rituals they think appropriate governing what they think is a marriage. That should not be a concern of the law. Similarly, it should not be a concern of religions what the State provides as governing this particular kind of contract or union.
I think it likely that we will not see the same kind of hysteria we saw in the days when the courts mandated segregation. Acceptance of gay marriage has spread with remarkable celerity, and, frankly, those who oppose it and oppose modern society generally will die off soon enough, to be replaced with the less intolerant, or will withdraw from that society to live and die in relative isolation, for good or ill.
Perhaps the times really are a-changin', this time.
Monday, September 8, 2014
The 7th Circuit Decision on Gay Marriage
There has been much comment regarding the decision of the 7th Circuit Court of Appeals holding that laws adopted by the great states of Indiana and Wisconsin banning gay marriage are unconstitutional. It's not clear to me that there should be, however. I'm not quite that enthusiastic about it, though I have no problem with Judge Posner's decision.
It may be that it is receiving what I think is excessive praise merely because Judge Posner wrote the decision. He is something of a star, even outside legal circles; perhaps this is why he is a star. This is in part because he has commented on the philosophy of law, which used to be referred to as jurisprudence. He is, I believe, a proponent of what has been called legal pragmatism.
Or it may be that the decision delights the more liberal of the media commentators because it was penned by a Court of Appeals judge nominated by Ronald Reagan, who a mere nine days before the issuance of the decision had treated the attorneys for the states in question rather roughly during oral argument. Certainly Posner's ironic reference to a dissenting opinion by Justice Scalia delighted them, at the least.
The decision is well written, and as I said I don't object to it. And there's no question that Judge Posner scored several hits during oral argument and in the decision itself. I don't consider it a masterpiece, frankly, simply because the arguments of the states in support of their laws were from the purely legal standpoint clearly weak, and it was difficult to take them seriously, as Judge Posner noted several times in his opinion. Even an accomplished writer like the Judge would find it hard to reach the heights of legal reasoning and eloquence when confronted with such arguments.
I think, however, the court's position that marriage imparts an element of respectability to a sexual relationship, and this is a benefit gay couples would be deprived of if not allowed to marry, is not very strong itself. That may be the case in the future, but I doubt those who feel homosexuality is bad in itself would think it more respectable if those engaging in it were married, and to many others the idea of gay marriage would be so novel and unfamiliar that it will take them time to accord it the same respect as heterosexual marriage (if indeed heterosexual marriage is accorded such respect).
I think it's appropriate to address the decision and the arguments from a "purely legal standpoint" because that is the only standpoint from which they should be considered. Judicial decisions should not be based on politics or religion, and should relate to morality only to the extent morals are evidently a part of the law itself. Political and religious considerations may influence the adoption of laws, but once the laws are adopted they become part of the vast system of law and its administration and enforcement. From the purely legal standpoint, the arguments made in support of the law had no substantive basis in law or in fact. I wonder whether such arguments were the best that could be made for such bans. If so, I think there's very little to argue about, and I feel sorry for those lawyers who had to make the argument nonetheless.
The simple fact is that tradition, morality and religious values don't factor strongly in the enforcement, administration and interpretation of the law. They may play a role in the adoption of laws, but those laws once enacted are governed by the same systemic rules applicable to any other law.
Thus, political, religious and moral objections to gay marriage or arguments against it are, in a way, doomed to failure from the start as far as the law is concerned. For good or ill, the law treats heterosexual marriage as essentially a partnership, not as a sacred institution, and is unable to discriminate against "gay partnerships" and favor "straight partnerships."
Religious institutions, however, are allowed to discriminate in many ways, and so may not allow gay marriage now or in the future. Opponents of gay marriage must, I believe, be satisfied with that.
It may be that it is receiving what I think is excessive praise merely because Judge Posner wrote the decision. He is something of a star, even outside legal circles; perhaps this is why he is a star. This is in part because he has commented on the philosophy of law, which used to be referred to as jurisprudence. He is, I believe, a proponent of what has been called legal pragmatism.
Or it may be that the decision delights the more liberal of the media commentators because it was penned by a Court of Appeals judge nominated by Ronald Reagan, who a mere nine days before the issuance of the decision had treated the attorneys for the states in question rather roughly during oral argument. Certainly Posner's ironic reference to a dissenting opinion by Justice Scalia delighted them, at the least.
The decision is well written, and as I said I don't object to it. And there's no question that Judge Posner scored several hits during oral argument and in the decision itself. I don't consider it a masterpiece, frankly, simply because the arguments of the states in support of their laws were from the purely legal standpoint clearly weak, and it was difficult to take them seriously, as Judge Posner noted several times in his opinion. Even an accomplished writer like the Judge would find it hard to reach the heights of legal reasoning and eloquence when confronted with such arguments.
I think, however, the court's position that marriage imparts an element of respectability to a sexual relationship, and this is a benefit gay couples would be deprived of if not allowed to marry, is not very strong itself. That may be the case in the future, but I doubt those who feel homosexuality is bad in itself would think it more respectable if those engaging in it were married, and to many others the idea of gay marriage would be so novel and unfamiliar that it will take them time to accord it the same respect as heterosexual marriage (if indeed heterosexual marriage is accorded such respect).
I think it's appropriate to address the decision and the arguments from a "purely legal standpoint" because that is the only standpoint from which they should be considered. Judicial decisions should not be based on politics or religion, and should relate to morality only to the extent morals are evidently a part of the law itself. Political and religious considerations may influence the adoption of laws, but once the laws are adopted they become part of the vast system of law and its administration and enforcement. From the purely legal standpoint, the arguments made in support of the law had no substantive basis in law or in fact. I wonder whether such arguments were the best that could be made for such bans. If so, I think there's very little to argue about, and I feel sorry for those lawyers who had to make the argument nonetheless.
The simple fact is that tradition, morality and religious values don't factor strongly in the enforcement, administration and interpretation of the law. They may play a role in the adoption of laws, but those laws once enacted are governed by the same systemic rules applicable to any other law.
Thus, political, religious and moral objections to gay marriage or arguments against it are, in a way, doomed to failure from the start as far as the law is concerned. For good or ill, the law treats heterosexual marriage as essentially a partnership, not as a sacred institution, and is unable to discriminate against "gay partnerships" and favor "straight partnerships."
Religious institutions, however, are allowed to discriminate in many ways, and so may not allow gay marriage now or in the future. Opponents of gay marriage must, I believe, be satisfied with that.
Tuesday, August 20, 2013
Orson's Game
We hear much of Orson Scott Card these days. Most likely we do because his novel Ender's Game has been made into a movie coming soon to a theatre near you, but also because he has taken it upon himself to declaim at some length verbally and in writing on topics such as gay marriage, our esteemed President and his claimed machinations, his (Card's) Mormon faith and the faiths of others, and more. He seems rather offended that his pronouncements in these areas have earned him enemies, which I find rather odd. But the self-righteous are, naturally enough, easily offended when their beliefs, so eagerly expressed, are questioned.
I find myself wishing he was content merely to write his books. His books aren't bad; some indeed are good, or so I believe. Ender's Game is a book I enjoyed reading. I also enjoyed reading his books in the series involving the character Alvin Maker. But I haven't enjoyed reading other books he's written.
The sequels to Ender's Game disappointed me, especially those written more recently. Genius children can grow to be annoying, particularly genius children who talk and write incessantly and are surrounded by dull, gullible, bovine or boorish and violent adults. Novels based on such conceits don't interest me after a chapter or two. He's also written novels which seem to have a biblical or Book of Mormonical (?) connection, and alas that is a connection which doesn't interest me either, except with respect to the extensive and profound connection between Christianity and the beliefs which preceded it and which it assimilated, which I find fascinating.
But as is so often the case, what I wish for is not true and does not come true, either. Mr. Card seems to rejoice in pontificating on various topics in various media. I of course cannot object to that in itself, as I pontificate here in this blog, and on a certain forum. But because of my relative anonymity and, I hope, because of a sensibility he seems to lack, my pronouncements are not quite as...well...loony, and not as likely to drive others to distraction (this sometimes seems to be his intent, regrettably).
Sadly, Card's opinions seem to be too much along the lines of the opinions already blared out by those who make their money doing right-wing talk radio, or are talking heads on Fox News. I'm no fan of our President, and can even be described as conservative or perhaps libertarian in some respects. But there is a level at which the expression of disagreement with the President and liberals generally becomes uninteresting and indeed unintelligent if not incoherent.
That level has been reached in talk radio and on Fox News, and that seems to be the level at which Mr. Card now operates. Obama has a character which seems to evoke hysteria in some, and what might be valid criticism swiftly degenerates into lunatic exaggeration in those cases. Card's very odd column in which he imagines the President usurping the government and revoking the Constitution strikes me as positively rabid. It's hard to believe that he would think he was engaging in rational thought of any kind while manufacturing such nonsense. Peppering it with facile references to Augustus, Napoleon and Hitler, which he appears to think evidences a keen grasp of history, simply makes him seem more of a crank.
He seems to believe that it is Muslim doctrine that any person who ceases to be a Muslim must be killed. The little reading I've done indicates that whether that is the case is disputed, but clearly Card thinks there is no dispute, or perhaps rather that if there is a dispute it doesn't matter. He maintains that unless Muslims agree to condemn this doctrine, they should be penalized by our government which should, among other things, deny Islam the exemption from taxes granted other religions. This is punishment Card believes appropriate for Islam being uncivilized.
I don't object to the revocation of this exemption as I think there should be no exemption for any religion or Church. The exemption is a benefit granted religions for no good reason as far as I'm concerned, but regardless they are not entitled to the exemption, they are given it. No organization should be accorded special status under the law. The revocation of a gratuitous benefit is not a punishment or penalty.
It seems gay rights advocates want us to boycott Ender's Game, the movie, because of Card's opposition to gay marriage. As I've noted before, I think marriage in the law is simply a special kind of partnership, and should be just that and only that as far as the law is concerned. Whether the partners are straight or gay makes no difference to me, and should not in the law. But I'm not inclined to avoid the movie because Card evidently thinks that gay marriage will somehow result in some kind of vicious, mandated quashing of traditional life, culture and morals. There have been plenty of novelists and artists throughout our history who have been idiots or bigots, but we should be free to read or view or listen to their work.
I won't go to see the movie for the same reasons I don't go to see others. Why spend money on what will likely be a bombastic cookie-cutter production, poorly acted, as are most movies made in our Glorious Republic these days? I'll wait until it shows up before me as I sit in my comfy chair in my living room, and then will probably end up turning it off in any case to read some non-fiction and listen to music (the History and Discovery channels having become for reasons unknown to me purveyors of strange "reality shows"). I may even think while doing that. Thinking is not a game being played well or often by Mr. Card and too many others of our time.
I find myself wishing he was content merely to write his books. His books aren't bad; some indeed are good, or so I believe. Ender's Game is a book I enjoyed reading. I also enjoyed reading his books in the series involving the character Alvin Maker. But I haven't enjoyed reading other books he's written.
The sequels to Ender's Game disappointed me, especially those written more recently. Genius children can grow to be annoying, particularly genius children who talk and write incessantly and are surrounded by dull, gullible, bovine or boorish and violent adults. Novels based on such conceits don't interest me after a chapter or two. He's also written novels which seem to have a biblical or Book of Mormonical (?) connection, and alas that is a connection which doesn't interest me either, except with respect to the extensive and profound connection between Christianity and the beliefs which preceded it and which it assimilated, which I find fascinating.
But as is so often the case, what I wish for is not true and does not come true, either. Mr. Card seems to rejoice in pontificating on various topics in various media. I of course cannot object to that in itself, as I pontificate here in this blog, and on a certain forum. But because of my relative anonymity and, I hope, because of a sensibility he seems to lack, my pronouncements are not quite as...well...loony, and not as likely to drive others to distraction (this sometimes seems to be his intent, regrettably).
Sadly, Card's opinions seem to be too much along the lines of the opinions already blared out by those who make their money doing right-wing talk radio, or are talking heads on Fox News. I'm no fan of our President, and can even be described as conservative or perhaps libertarian in some respects. But there is a level at which the expression of disagreement with the President and liberals generally becomes uninteresting and indeed unintelligent if not incoherent.
That level has been reached in talk radio and on Fox News, and that seems to be the level at which Mr. Card now operates. Obama has a character which seems to evoke hysteria in some, and what might be valid criticism swiftly degenerates into lunatic exaggeration in those cases. Card's very odd column in which he imagines the President usurping the government and revoking the Constitution strikes me as positively rabid. It's hard to believe that he would think he was engaging in rational thought of any kind while manufacturing such nonsense. Peppering it with facile references to Augustus, Napoleon and Hitler, which he appears to think evidences a keen grasp of history, simply makes him seem more of a crank.
He seems to believe that it is Muslim doctrine that any person who ceases to be a Muslim must be killed. The little reading I've done indicates that whether that is the case is disputed, but clearly Card thinks there is no dispute, or perhaps rather that if there is a dispute it doesn't matter. He maintains that unless Muslims agree to condemn this doctrine, they should be penalized by our government which should, among other things, deny Islam the exemption from taxes granted other religions. This is punishment Card believes appropriate for Islam being uncivilized.
I don't object to the revocation of this exemption as I think there should be no exemption for any religion or Church. The exemption is a benefit granted religions for no good reason as far as I'm concerned, but regardless they are not entitled to the exemption, they are given it. No organization should be accorded special status under the law. The revocation of a gratuitous benefit is not a punishment or penalty.
It seems gay rights advocates want us to boycott Ender's Game, the movie, because of Card's opposition to gay marriage. As I've noted before, I think marriage in the law is simply a special kind of partnership, and should be just that and only that as far as the law is concerned. Whether the partners are straight or gay makes no difference to me, and should not in the law. But I'm not inclined to avoid the movie because Card evidently thinks that gay marriage will somehow result in some kind of vicious, mandated quashing of traditional life, culture and morals. There have been plenty of novelists and artists throughout our history who have been idiots or bigots, but we should be free to read or view or listen to their work.
I won't go to see the movie for the same reasons I don't go to see others. Why spend money on what will likely be a bombastic cookie-cutter production, poorly acted, as are most movies made in our Glorious Republic these days? I'll wait until it shows up before me as I sit in my comfy chair in my living room, and then will probably end up turning it off in any case to read some non-fiction and listen to music (the History and Discovery channels having become for reasons unknown to me purveyors of strange "reality shows"). I may even think while doing that. Thinking is not a game being played well or often by Mr. Card and too many others of our time.
Saturday, May 12, 2012
Love and Marriage
They go together like a horse and carriage, as we know. And if a horse and carriage is like a marriage, why not gay marriage?
I'm being silly, of course. But as our President has caused the issue to raise its head again, as it were, I feel given to expound on it. He is an able politician; he says that he is in favor of it but thinks the states should decide whether or not it should be legal. The best of both worlds in the political universe, it would seem.
I heard on the radio recently the argument that gay marriage should be allowed as it involves the pursuit of happiness, one of the "inalienable" rights identified in the Declaration of Independence of our Glorious Republic. The drafters of that remarkable document, being lawyers, were careful not to state that happiness itself is a right. If one considers our society litigious now, just imagine what it would be like if we could sue for being deprived of happiness.
So, we have only the right to pursue happiness, it seems. If a gay person wants to pursue happiness by marriage, should not he/she have a right to do so?
Well, the pursuit of happiness is subject to some limitations. One can't pursue it through fraud, for example, or criminal conduct. Not quite the same thing, though, I hope all would agree. But the law also imposes restrictions on conduct in other circumstances, purportedly for the public health and welfare.
No doubt those who oppose gay marriage would claim that it is detrimental to the public health and welfare in some manner. It's hard to imagine, though, how it would be any more detrimental than marriage is now. The contentions being made regarding the "sanctity" of marriage are laughable. It should be obvious that marriage is not, at least in the law, a sacred or holy relationship, nor should it be. It should also be obvious that it is not treated as such by most of us, or is at most treated as a sacred and holy relationship which may be revoked at will and is revoked by many in fact; in other words, not very sacred and holy at all.
I've voiced the opinion in this blog and elsewhere that it would be useful if the word "marriage" was not used in the law, i.e. that all marriages be considered "civil unions" or "domestic partnerships" or something along those lines. That would only make sense, as for purposes of the law they are nothing more than partnerships of a special kind, which operate and are construed as business partnerships in most ways. This would it is to be hoped release us from claims being made that marriage has some kind of unique status, which cannot be sullied in any fashion. Claims made in the context of the law, that is to say. Religions may treat them as holy as they like. However, what they do would and should make no difference to the law. Whatever penalties or prohibitions a religion may impose as to marriage may be imposed, provided that they are not relevant to legal status, rights and responsibilities.
But I daresay someone would claim that this is caving in to bigotry, or that marriage does, indeed, have a special status in the law, as some federal judges have held, which renders it in a manner I find bewildering different from civil unions in the law, and that this special status should be made open to all.
Words do indeed have power. But sometimes they are accorded too much power over us.
I'm being silly, of course. But as our President has caused the issue to raise its head again, as it were, I feel given to expound on it. He is an able politician; he says that he is in favor of it but thinks the states should decide whether or not it should be legal. The best of both worlds in the political universe, it would seem.
I heard on the radio recently the argument that gay marriage should be allowed as it involves the pursuit of happiness, one of the "inalienable" rights identified in the Declaration of Independence of our Glorious Republic. The drafters of that remarkable document, being lawyers, were careful not to state that happiness itself is a right. If one considers our society litigious now, just imagine what it would be like if we could sue for being deprived of happiness.
So, we have only the right to pursue happiness, it seems. If a gay person wants to pursue happiness by marriage, should not he/she have a right to do so?
Well, the pursuit of happiness is subject to some limitations. One can't pursue it through fraud, for example, or criminal conduct. Not quite the same thing, though, I hope all would agree. But the law also imposes restrictions on conduct in other circumstances, purportedly for the public health and welfare.
No doubt those who oppose gay marriage would claim that it is detrimental to the public health and welfare in some manner. It's hard to imagine, though, how it would be any more detrimental than marriage is now. The contentions being made regarding the "sanctity" of marriage are laughable. It should be obvious that marriage is not, at least in the law, a sacred or holy relationship, nor should it be. It should also be obvious that it is not treated as such by most of us, or is at most treated as a sacred and holy relationship which may be revoked at will and is revoked by many in fact; in other words, not very sacred and holy at all.
I've voiced the opinion in this blog and elsewhere that it would be useful if the word "marriage" was not used in the law, i.e. that all marriages be considered "civil unions" or "domestic partnerships" or something along those lines. That would only make sense, as for purposes of the law they are nothing more than partnerships of a special kind, which operate and are construed as business partnerships in most ways. This would it is to be hoped release us from claims being made that marriage has some kind of unique status, which cannot be sullied in any fashion. Claims made in the context of the law, that is to say. Religions may treat them as holy as they like. However, what they do would and should make no difference to the law. Whatever penalties or prohibitions a religion may impose as to marriage may be imposed, provided that they are not relevant to legal status, rights and responsibilities.
But I daresay someone would claim that this is caving in to bigotry, or that marriage does, indeed, have a special status in the law, as some federal judges have held, which renders it in a manner I find bewildering different from civil unions in the law, and that this special status should be made open to all.
Words do indeed have power. But sometimes they are accorded too much power over us.
Wednesday, November 4, 2009
The Legal Significance of "Gay Marriage"
Specifically, what would be its significance, in the law? In what respect would it make a difference, in the law?
Certain unions in addition to those traditionally recognized between a man and woman would be recognized as having certain legal characteristics. Certain legal rights and obligations between the partners, and the between the union and third parties, would apply in the case of the union, or partnership (which is what a marriage is, as to money, property and contracts) of two humans of the same sex in addition to two humans of the opposite sex (why "opposite", by the way?). There would be more work for lawyers (we keep creating such work, on an almost daily basis, and yet complain that there are too many). More work for the courts, as there is no reason to believe such unions between two of the same sex will be any more successful than those between two of the opposite sex. And that would, as they say, be that--for the law.
There are dangers in legislating morality. Sometimes, morality figures in the creation of law. The law, once in place, is not moral, however. It is a functioning system, often of great complexity.
The law shouldn't concern itself with the morality of marriage. Let religions treat as "marriage" whatever they deem appropriate. Let the law treat "marriage" as it already treats it--as a partnership, nothing more, nothing less. If ideas associated with the word "marriage" create problems in the law, eliminate it from the law, and let all such unions be called "domestic unions" (or partnerships, or whatever) and be done with it.
Certain unions in addition to those traditionally recognized between a man and woman would be recognized as having certain legal characteristics. Certain legal rights and obligations between the partners, and the between the union and third parties, would apply in the case of the union, or partnership (which is what a marriage is, as to money, property and contracts) of two humans of the same sex in addition to two humans of the opposite sex (why "opposite", by the way?). There would be more work for lawyers (we keep creating such work, on an almost daily basis, and yet complain that there are too many). More work for the courts, as there is no reason to believe such unions between two of the same sex will be any more successful than those between two of the opposite sex. And that would, as they say, be that--for the law.
There are dangers in legislating morality. Sometimes, morality figures in the creation of law. The law, once in place, is not moral, however. It is a functioning system, often of great complexity.
The law shouldn't concern itself with the morality of marriage. Let religions treat as "marriage" whatever they deem appropriate. Let the law treat "marriage" as it already treats it--as a partnership, nothing more, nothing less. If ideas associated with the word "marriage" create problems in the law, eliminate it from the law, and let all such unions be called "domestic unions" (or partnerships, or whatever) and be done with it.
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