No. 2: (11-11-08) What is Your Position on California’s Prop 8?


Lets call a spade a spade, two sides of the pro-homosexual marriage has arguments that conflict with each other.  One claims it is it isn’t about politics or anything else except love and that it’s not redefining the definition of marriage. Others claim that marriage isn’t strictly all about love, its also about the legal status of marriage which is just that — a legal status.  A ballot measure has the force of law which is defining a legal status.  The argument about love and spiritual connection, is a spiritual argument which would more aptly be directed towards clergy in an ecclesiastical debate rather than a political one.  If it is about love then do bigamists not love just as genuinely as homosexuals?  Defining love in a legal manner is completely spurious effort as love is a completely subjective definition based on your personal interpretation. 


If we as a society decide not to confer legal benefits of marriage on members of a bigamist relationship, on what grounds do we do so?  If we say because they have no Constitutional right to engage in bigamy, what is the Constitutional right to a heterosexual marriage with legal status?  I see nothing in the Federalist Papers, Constitution or the subsequent Amendments that either defines marriage or confers a right to marry (outside of a religious practice) and for the government confer certain legal benefits on them.


If the argument for heterosexual marriage is that at the time of the founding, that this was the accepted expression and that legal status should be conferred on marriage, then so be it, but that became a statutory right not a Constitutional right.  If people determine that as a whole they do not see a sufficient need or value in extending rights of marriage to in terms of a legal status, then that is a right reserved to the people. 


Our laws are designed to allow discrimination all the time when the people determine that the societal value of the discrimination is deemed to outweigh the persons or class discriminated against.  Felons are discriminated against holding public office or owning firearms.  Sex offenders are discriminated against by not having freedom to associate and interact with children.  Non-licensed individuals are discriminated against by being restricted to practice law or medicine.  Former employees are discriminated against by non-compete agreements with former employers.  But again, what is the overriding social need and justification to confer the legal status of marriage on homosexuals as opposed to bigamists? 


I still don’t understand though why 2 people getting married who are gay is a right and 3 people getting married heterosexual or otherwise is illegal in the context of California’s Prop 8.  If two (or 3 or more) people getting married is about legal status then lets treat it as contractual law.  If it’s about love and a spiritual connection and commitment, then let’s treat it as spiritual matter and let churches decided what it is. 


As I said, either we uphold the traditional definition with a Constitutional Amendment, or we must rework the entire legal construct of marriage (outside of religious practices) and establish an objective determination of the purpose of marriage and societal benefits and secondly the objective criterion upon which we must confer legally sanctioned marriages and apply the standards evenly with no regard for religious beliefs or sexual orientation.  In other words, marriage must become a branch of contractual law defining fiduciary duties of partners etc. and not a matter of civil rights law and dissolution of a marriage should take the form of dissolution of a company.


As this begins to become more and more a wedge us versus them issue, I would like to take it completely out of the power of the courts to decide this issue.  I think marriage should be redefined and marriages can be religiously sanctioned relationships and civil unions can be legal constructs defined by the States and the Federal government. Thereby religious interpretations and definitions of marriage are removed from political discourse and do not risk law suits for refusing to perform a “marriage” that does not comport to their ecclesiastical beliefs. 


The issue of marriage may be the biggest over looked separation of church and state issue there is.  As it stands and for the past 200 years marriage has been a hybrid of legal and societal values and religious values and inextricably linked and to alter one is necessarily to alter another.  I’m sure there was much anger in the south during the civil rights revolution whereby race could no longer prohibit people from getting married.  Today a very small minority (between 2% and 4.2% depending on your source) of the American population is being discriminated against in being prohibited from getting married.  The difference between blacks being able to marry and gays being able to marry is the difference between racism and the collective traditions of western religion and society in which the definition of marriage has not included homosexuality.  Racism defies the Constitution the collective traditions of western religion and society do not.  In an age of all or nothing absolutism I believe we should redefine marriage.


What the judge down the street should be able to do as an officer of the State is to perform a civil union.  The people of your state should determine who may qualify for a civil union and what benefits and rights that entails.  Free from claims of Constitutional rights, as what rights a State chooses to confer upon its people is a decision of that State so long as they are not enumerated by the Constitution. 


What your religious leader should be able to do is perform a wedding ceremony to those persons who adhere to the tenants of their faith without worry that if they refuse to perform a homosexual or polygamist wedding, they could be sued for violating someone’s civil rights or lose their tax exempt status.  Marriage is a sacrament in the religious context and should remain so, just as a Church may decide who qualifies to be ordained, who may take communion or be baptized, without fear of legal action. 


One Response to No. 2: (11-11-08) What is Your Position on California’s Prop 8?

  1. Bob Wiseman says:

    Your conclusion might further the “muddy waters” in that some religious groups are willing to perform Gay and Homosexual marriages where others might not. Now we have a third category of citizens who are both gay and married. What about those who would like to be married but their religious convictions do not permit it?

    Why are we allowing a minority to redefine what marriage has always been? Although the English language is a “living language” I have long held that by “living” we are referring to an expansion of the language and not “co-opting” a word (marriage) or (gay) because it suits the purposes of a specific group of people. To discriminate does not necessarily mean deny one his or her civil rights. We have defined restrooms as men and women’s rooms. If a group of people decide that it makes no sense to honor that definition we will ultimately loose our sense of privacy?

    In the legal field words have very specific meanings. Would the legal profession support an effort to erode the very meanings of words which allow it to function. Are we being “discriminated” against if we are not allowed to alter the definition of those legal terms?

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