The Conservative Cave
Current Events => General Discussion => Topic started by: SSG Snuggle Bunny on February 16, 2008, 05:21:29 AM
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...floated the notion that gay marriage had to be constitutional because--as far as he could see--all objections to gay marriage were religious in origin bans against gay marriage were unconstitutional viz-a-viz the establishment clause.
Several points in refutation:
The constitution also forbids prohibiting the free exercise of religion. Although had I been able to interrogate this nimrod I can't help but wonder if his argument would have become something along the lines of: well, you can go to church for happy feelings and moral instruction, you just can't vote that way and if you do we have to ignore you.
The constitution also forbids giving religious litmus tests for those elected and as most DOMA laws are proposed by legislators it would be unconstitutional to survey their religious feelings as precondition to fulfilling their elected duty.
I can rationalize Darwinistic cases against homosexuality. Everyone that has ever heard them has been horrified by what they foreshadow.
On that note: Darwinistic cases were made in favor of slavery. Read John C Calhoun's "Disquisition of Government" where he claims blacks are inferior because technology possessed by whites makes them the raw masters of nature because only whites have created guns and steam engines. Arrayed against his sort were abolitionists whose moral center of gravity were the Quakers, a sect so-named because of their ecstatic episodes during times of worship. How would this host deal with that?
One caller trotted out the canard that regulation of marriage didn't happen until the Mormons appearred. Even if accepted at face value (dill-hole neglects the fact that laws against prostitution, sodomy, incest, adultery etc were on the books to regulate sexuality long before that) it fails because the constititution does not prohibit the creation of new laws--we are not frozen in 1789--it lays the framework for how new law is created.
In fact, I would remind these idiots that among the indictments in the Declaration of Independence are those complaining that the King refused to allow the people to pass laws for their own good. To wit: "He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them."
To this I would add that as one of the authors of the DoI was John Adams he never intended religion to be shut out. On the contrary when he co-authored the Maasachusetts state constitution in 1780 the public funding of churches was permitted.
This brings us to another point: the establisment clause applies to the national congress, not state legislatures. He would be very nit-picky about noting how the 2nd Amendment declares the right of the PEOPLE to keep and bear arms shall not be infringed but he takes on an ACLU-like constitutional amnesia when a similarly exact reading would state just as specifically that CONGESS shall pass no law regarding the establishment of religion.
Hell, the fundies aren't even establishing a religion, they're just banning gay marriage.
Essentially, this idiot wants to reduce chritians to being second-class citizens. Sit down, shut-up and accept whatever laws his oligarchy dictates are adequate for your freedom. He'll be happy to take your taxes (albeit at a lower rate than democrats) but you need not be represented because you belive in god and that automatically disqualifies you from all government because that is the way the framers would have wanted it.
Liberaltardians increasingly strike me as a group seized upon half-notions of "liberty" who then conflate its terms to mean little more than anarchaic license.
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To be fair, he DOES have a point. Marriage was a religious institution long before it was a legal one. Hell, even now there are wide differences in maritial priveliege from state to state.
So, according to the First Amendment, if an established religion DOES allow gay marriage (such as the Episcopalians), does the government have the right to say no? Wouldn't that be prevention of free exercise of religion?
To that vein, this is why I would actually be AGAINST a federal ban on gay marriage. First, it'll never hold up under review, second, it's a states, not a federal issue, third, isn't this a conservative means of legislating morality? Wouldn't we look rather hypocritical opposing so-called "hate crime" legislation yet pushing banning gay marriage?
This isn't a simple issue, of course, but the vast majority of the electorate (not the elected, sadly) still get it and are moral and just people. The moral and just will survive. Have faith.
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To be fair, he DOES have a point. Marriage was a religious institution long before it was a legal one. Hell, even now there are wide differences in maritial priveliege from state to state.
So, according to the First Amendment, if an established religion DOES allow gay marriage (such as the Episcopalians), does the government have the right to say no? Wouldn't that be prevention of free exercise of religion?
To that vein, this is why I would actually be AGAINST a federal ban on gay marriage. First, it'll never hold up under review, second, it's a states, not a federal issue, third, isn't this a conservative means of legislating morality? Wouldn't we look rather hypocritical opposing so-called "hate crime" legislation yet pushing banning gay marriage?
This isn't a simple issue, of course, but the vast majority of the electorate (not the elected, sadly) still get it and are moral and just people. The moral and just will survive. Have faith.
Fair points.
I agree that absent a constitutional amendment this is a states issue.
Alas, the Comity clause makes it a federal issue as soon as gay couples married in one state seek recognition--or divorce--in another state.
Your analogy to hate crimes seems misplaced on 3 counts:
1. marriage is an act and acts are exactly what the law seeks to regulate. Morality is a matter of conscience the freedom of which is guaranteed.
2. laws are moral statements. We don't protect property from arbitrary confiscation based on mere democratic whim but because we view the owner as possessing rights; things transcending temporal and subjective qualifiers. Ditto rape, pedophilia and a host of other morality based laws. My beef with hate-crime laws aren't that they are unconstittuional--because courts establish intent every day--but rather they are misapplied to stifle criticism. My argument against hate crime laws is practical, not legal in nature.
3. the analogy is what it proposes to refute: banning matters of conscience and applying an ideological litmus test to self-governance. To claim christian's can't vote on gay marriage because their religion informs them it is a sin is to say they must choose to either vote or be christian but not both.
Your most valid point is:
So, according to the First Amendment, if an established religion DOES allow gay marriage (such as the Episcopalians), does the government have the right to say no? Wouldn't that be prevention of free exercise of religion?
Herein lies the rub. The liberaltardian oligarchs don't trust the people to govern themselves because apparently the people keep voting the wrong way. So they demand tribunals to strike down any law they don't like as "unconstitutional."
Yet, the government would be very wrong to strike down a law permitting gay marriage simply on the basis that it were championed by a gay-favoring sect just as it would be wrong to thwart the abolitionists simply because they were predominantly christian.
Oddly, the host's main complaint that queers could not get insurance and visit each other in the hospital. Why a so-called libertarian should demand a private insurance company or hospital adjust their business decisions according to gov't dictate is beyond me.
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Herein lies the rub. The liberaltardian oligarchs don't trust the people to govern themselves because apparently the people keep voting the wrong way. So they demand tribunals to strike down any law they don't like as "unconstitutional."
Oddly, the host's main complaint that queers could not get insurance and visit each other in the hospital. Why a so-called libertarian should demand a private insurance company or hospital adjust their business decisions according to gov't dictate is beyond me.
Hypocrisy, ain't it wornderful? And they wonder why they'll never be more than a fringe political ideology.
Face it--libertarianism is a great idea--if you're 16.
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Libertarianism: Put that in your pipe and smoke it!
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I don't really buy the basic argument. "Originally" is a long time ago and the law of marriage had passed out of ecclesiastical courts and into chancery courts long before this country was founded. Like all the English common law upon which our system is based, it falls back to edicts of a monarch trying to impose a uniform system on a chaotic land in which Christianity did not have exactly timeless roots (Wiki "common law" and you'll find out it probably doesn't mean what you thought it meant). The unique feature of the Anglo-Saxon legal tradition is however that those original rules have been interpreted by courts and custom, with custom in turn plowed back into the legal interpretation, over hundreds of years. In fact the Chancery courts were established to enforce customary law where the reach of the King's law was too ill-defined to reach or it did not provide effective remedy (since the Law Courts could only award monetary damages). Custom more than the King established much of the law, to include the actual elements necessary to prove crimes, all of modern commercial law (only reduced to a code in the 20th Century), also tort, contract, and property law. Unwritten, "Customary" international law even became the basis for the prosecution of war criminals at Nuremburg, since there was no treaty or other international law actually and specifically outlawing aggressive warfare or genocide.
I therefore see the customary law of marriage as involving opposite genders since there is no reason to believe that same-gender marriage has any basis whatsoever in our legal tradition. At the same time, absent an amendment, the Federal authority to outlaw it might be questionable since domestic relations law is generally a State issue (not that there aren't tons of Federal laws that affect it directly or indirectly through the bootstrap of some Federal interest, including the Uniformed Services Former Spouse Protection Act or various other laws). Because of the comity issue, however, it WOULD be entirely legitimate for the Federal government to step into the gap and specify that such marriages were not entitled by right to recognition as a lawful marriage outside the jurisdiction where they were concluded.
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To be fair, he DOES have a point. Marriage was a religious institution long before it was a legal one. Hell, even now there are wide differences in maritial priveliege from state to state.
So, according to the First Amendment, if an established religion DOES allow gay marriage (such as the Episcopalians), does the government have the right to say no? Wouldn't that be prevention of free exercise of religion?
To that vein, this is why I would actually be AGAINST a federal ban on gay marriage. First, it'll never hold up under review, second, it's a states, not a federal issue, third, isn't this a conservative means of legislating morality? Wouldn't we look rather hypocritical opposing so-called "hate crime" legislation yet pushing banning gay marriage?
This isn't a simple issue, of course, but the vast majority of the electorate (not the elected, sadly) still get it and are moral and just people. The moral and just will survive. Have faith.
There is a workability argument there. If you allow gay marriage, then you have to allow marriage between parents and children, groups of 3 to n people, etc. Marriage as a public policy issue as a foundation for a stable home to raise children would be over.