By now you've no doubt heard about the very unsurprising overturning of Prop 8 out in California (unsurprising because the Judge ran the trial in a way that made it pretty clear how he felt about the law from the get-go).
I am not bothered by gay marriage as a concept. I do have reservations on the process to enact those rights, and wish to make sure that whatever legal regime we design to incorporate gay marriages/unions is written carefully so as not to signify that we cannot exclude any consensual relationship under the "marriage" definition.
Anyway, I haven't finished reading the decision yet, but the Judge does base quite a bit of the decision on the notion that public conceptions of morality cannot be used as a basis for legislation. While that sounds good and fine, isn't that more or less totally untrue by practice?
It seems to me that there are a whole host of laws that are based on moral principles across the spectrum of laws (including but not limited to drug laws, gambling laws, prostitution, and yes...a number of things related to marriage). For example, common law marriages are based off of established timelines of commitment; that is, society decided that marriage implies a dedication/value demonstrated by cohabitation for a period of significance; that's a moral determination about the idea behind marriage.
If the standard is that carte blanche legislation related to marriage cannot be based off of cultural moral conceptions, then how can the People (and the State) make arbitrary provisions that ban polygamy (in its various forms), incestuous relationships, or any other type of consensual relationship (And how can they decide that the concept only be between two people)?
I think society does have a right to use morality as part of legislation (though I would hope it's not the main or only justification); I just don't think that gay marriage should be considered "immoral." I view marriage as an essentially arbitrary definition. And I'm fine with that; just slide the arbitrary line over slightly to include two person, gay unions.
As I said, I don't have a problem with gay marriage (for me the ideal solution is to have everyone get civil unions, and leave "marriage" as a purely religious notion). But I do have a problem with stupid judicial decisions that are based on preconceived political ideas and without thought about how it'll impact our broader legal regime. I could be wrong, but this decisions really doesn't seem like it's based on solid principles.
Hopefully the Supreme Court can straighten all of this out. For me, I hope it will return these issues to the forum of democratic deliberation where I think they belong. And we can all work to convince people that gays aren't some fifth column of evil, child endangerers.
The bullish case for Brazil
10 hours ago
It seems to me that the judge is taking a decidedly positivist approach to the law. To paraphrase Joe Friday, “just the facts ma’am.”
ReplyDeleteOn another note, have we ever discussed gay marriage before? I don’t think we have. But you’ll not be surprised to hear that I agree with your argument’s conclusion, but differ on its approach.
Religious ceremonies, like marriage, are in and of themselves a mythological construct. It’s an appeal to an imaginary force that, logically speaking, should have no greater claim on Truth than my neighbor’s appeal to the Flying Spaghetti Monster.
But that’s where morality comes in, right? Because society does ascribe a greater weight to heterosexual couples asserting that their union is “sanctified” under the aegis of religion. Most Americans, according to the polls, don’t think homosexual couples should be granted that same right. When we’ve got competing appeals to Truth, who’s to decide who’s right?
Well, Judge Vaughn Walker, for one. But as Esquire said, it’s all arbitrary. So for me, it comes down to whether I believe that the law should drive morality or morality should drive the law. Each come with its own baggage.