Homosexuals have a right to be tolerated, but social recognition of relationships via the institution of marriage is not about tolerance. It is about approval, and nobody has a right to approval. By trying to force social approval for what most people disapprove, it is homosexuals who are being illiberal, violating the democratic right of the people to by majority rule establish what laws they see fit so long as those laws do not themselves violate natural liberty.
There was a time when marriage was about more than mere social approval, so that being barred from marriage could indeed violate a person’s natural liberty. For instance, sex outside of marriage used to be a crime, often severely punished. This is no longer the case, not just as a practical matter, as society has become more tolerant, but as a matter of Constitutional law. Justice Kennedy’s ruling in Lawrence v. Texas recognized for the first time (and long overdue) a general right to liberty, grounded in the 9th Amendment’s assertion that the sphere of protected liberty is not limited to the enumerated protections.
In the particular instance, Lawrence v. Texas specifically decriminalized homosexual relations, whether homosexuals are married or not. In one stroke, that stripped away the relevance of marriage to constitutionally required tolerance. The remaining legal concomitants of marriage contain only minor liberties (some of suspect propriety, like allowing spouses not to testify against spouses, regardless of the severity of the crime in question). At the same time, the economic arrangements of marriage can be secured by freedom of contract, without requiring society to do anything more than provide enforcement of contracts.
In terms of assistance, our laws don’t provide any significant advantages to married couples, and what advantages do exist are to support the bearing and raising of children. Supporting children indirectly by assisting parents is always hit or miss, and there is no possibility, never mind any constitutional requirement, that all parents or children be supported equally.
All that is left is the issue of social approval. Given that tolerance and approval are opposites of a sort, it may seem obvious that no one has a constitutional or moral right to approval, but it is still important to work through the moral machinery, beginning with the theoretical quesiton of how to achieve the greatest equal liberty.
The inalienable rights of the Declaration and John Stewart Mill’s principle of liberty
The 9th Amendment reads:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
To locate these unenumerated rights that are “retained by the people,” the obvious place to start is with rights that had already been enumerated in the Declaration of Independence:
that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
For this general protection of liberty to be taken seriously (as Lawrence v. Texas calls for), individual liberties would have to be extended until they interfere with other constitutionally protected values, or with each other.
Extension of individual rights until they interfere with each other is just another way of saying that there is to be the greatest possible equal liberty, and thanks to John Stewart Mill, we already have an effective rule for identifying this greatest equal liberty. If you are not harming other people, says Mill’s famous “principle of liberty,” you are not to be harmed by the state.
Mill’s stroke of genius was in how he defined “harm,” distinguishing between what he called direct and indirect interests (On Liberty, Ch.1, PP12). Direct interests are life and liberty. If someone physically accosts you, or takes your money, then your direct interests are affected. In contrast, Mill distinguished indirect interests as vicarious interests: either a person’s thought’s about the behavior of others, or his concern for other people’s opinion of his own behavior.
In its full articulation, Mill’s principle of liberty says that in terms of the law, all direct interests are to take absolute priority over any amount of indirect interests. Unless you can think of additional distinctions that would allow us to further separate greater from lesser liberty interests, this is as far as we can go in determining the scope of greatest equal liberty and protecting it. It is hard enough to come up with ANY general scheme for distinguishing greater from lesser interests, so that conflicts between interests can be adjudicated in favor of the greater equal liberty, but Mill did it. As far as it goes, his scheme WORKS.
When direct interests are in conflict with direct interests, Mill’s principle of liberty turns the issue over to majority rule. When a person’s behavior does not harm the direct interests of others, but only offends their indirect interests, then law is to leave him alone. This leaves just one more case. What should be done when the only conflict is between different peoples’ indirect interests, with no direct interests on either side?
Mill’s principle of liberty and the right to privacy
Sometimes a person’s interest in engaging in a particular behavior is indirect. He might be specifically interested in other people’s reaction to his behavior, as when San Francisco homosexuals take to the streets for their pornographic parades. On the other side, residents who don’t like these displays have only an indirect interest in having these exhibitionists put their pants back on. The result is a conflict of indirect interests only.
Mill never addressed this case, but logically it should be treated the same as a conflict of direct interests. Since none of the liberty interests that are at stake can be identified as greater or lesser than the others, the greatest-equal-liberty criterion has nothing to say about what should happen. The natural liberty of individuals is not at stake, which means the question must be turned over to majority rule.
Ours is a government of the people, by the people and for the people. The natural liberty of individuals comes first, then come the rights of the majority. So long as the majority does not infringe natural liberty then the democratic ideal holds sway, and the boundary of natural liberty, as far as reason can discern it, is the priority of direct over indirect interests.
In San Francisco majority rule means porno-marches yes. In Fresno, porno-marchers no. The upshot is a right to privacy, created not as a way of protecting a class of inherently private behavior, but as a way of allowing some behaviors to be banned in public.
People DO have a direct interest in being allowed to participate in pornographic acts. It is only engaging in such acts in public that no one has a direct interest in. So long as people have scope to engage in pornographic acts in private, then their direct interests are protected, and only their indirect interests are affected by being barred from this behavior in public, which is not a liberty concern.
Gay marriage is an indirect interest
Since marriage no longer regulates matters of natural liberty, all that is left of the institution of marriage under American law is society’s stamp of approval for married couples. A desire for approval is an indirect interest: an interest in what other people think. To impose it over the indirect interests of the majority is to treat it as a direct interest, and ultimately to impose it over the direct interests of others.
Of course majority rule is imperfect. What it approves will never be what everyone approves, and some people will always be forced to go along with public approval for what they do not approve. Still, one of our individual rights is to have a republican form of government, which means that matters that are properly subject to majority rule ARE subject to majority rule, and that minorities do not get to impose their demands for approval on the rest of us. When that is violated, the harms to direct interests that result are wrongs.
Ted Olson’s suit in favor of gay marriage
In their interview with Larry King, Ted Olson and David Boise outlined the equal protection argument they are going to make in federal court against Proposition 8 (which amended the California State Constitution to define marriage as between a man and a woman).
They appeal to the precedent established in the aptly named case of Loving v. Virginia, where 42 years ago SCOTUS struck down a Virginia law barring interracial marriage. Loving v. Virginia recognized marriage as a fundamental right. Olson and Boise argue that under the equal protection clause, that right must be recognized equally for all Americans, regardless of sexual orientation, allowing anyone to marry anyone.
This argument begs the exact question that Prop. 8 raises, and answers so succinctly: what is marriage? If it is by definition between a man and a woman, then yes, homosexuals have a right to marry, but they can only marry people of the opposite sex. Otherwise it is not marriage.
Olson and Boise are in-effect trying to use the equal protection clause to change the definition of marriage, but changing the definition of marriage is beyond the purview of the equal protection clause. The definition of marriage as between a man and a woman is established by history and religious tradition, things that the equal protection clause cannot affect. The 14th Amendment can only determine that homosexuals have a right to marry people of the opposite sex, just like everyone else.
Kmiec’s proposal to get government out of the marriage business entirely
Douglas Kmiec thinks the thorny problem of gay marriage can be resolved (or at least swept under the rug) by getting government out of the marriage business altogether. But when government participation in marriage is viewed as a vehicle both for conferring social approval and for directing social assistance mothers and fathers who bear and raise children, abandoning this enterprise is no solution. Kmiec is just dodging the question of what society should approve and disapprove by deciding not to approve or disapprove of anything.
The moral weakness of this approach is well captured by Ed Morrissey’s reason for approving of it:
Kmiec has the better argument, mostly because the “state” gave up protecting marriage and children decades ago.
We already fail to give proper due to heterosexual marriage, so instead of fixing that failing, lets just dump the whole thing.
From the viewpoint of moral science, getting government out of the business of approving or disapproving anything is a violation of the rights of the majority. So long as natural liberty is protected, majority rule properly holds sway. To say that the majority cannot exercise its properly allocated powers is a tyranny of the minority, overthrowing the largest part of republicanism, which is democracy.
The American meaning of republicanism is the system of liberty under law. Democracy has two roles in this system. It allows us to throw off a tyrant who tramples on the natural liberty of the people (a capacity that looks like it is going to be tested in the next two elections); and it allows the people to decide for themselves how they want to be governed consistent with natural liberty. Thomas Jefferson stated the latter in an 1817 letter to Alexander von Humboldt:
The first principle of republicanism is that the lex majoris parties is the fundamental law of every society of individuals of equal rights; to consider the will of the society enounced by the majority of a single vote as sacred as if unanimous is the first of all lessons in importance, yet the last which is thoroughly learnt.
Tyrannies of majority and minority in California
In the name of anti-discrimination, California has for many years been engaging in both tyranny of the majority and tyranny of the minority. The state government (tyranny of the majority) has passed numerous laws that violate freedom of association and other natural liberties, forcing not just toleration, but actual association with homosexual behavior.
Consider California’s 2003 Fair Employment and Housing Act, which expanded the state’s anti-discrimination laws to include trans-gendered people in employment and housing. What? You didn’t promote that grizzled and graying 250 pound bald man wearing a pink dress and a push-up bra? Yes, I’ve actually seen it, at a local Sear Robuck no less.
Bet he wasn’t dressed like that when he applied, but if they fire him for it, they’ll lose in court. And what sane jury would ever believe that this person’s grotesque behavior did not hold back his career? To avoid losing in court, Sears will actually have to promote him. In California, it is now in effect the employer’s job, not the employee’s job, to keep the employee’s career on track, so long as the employee dresses shamefully.
California’s Democrat dominated legislature has been larding the state up with this garbage for decades. Homosexuals were added to the anti-discrimination laws several years before the trans-gendered. All of these laws are violations of natural liberty. People are allowed to discriminate on the basis of every behavior except homosexual behavior. Again, the upshot is forced approval on the pretense of individual rights, when there is no right to approval.
These bogus rights claims become tyranny of the minority when they are used to keep the majority from enacting restrictions that withhold public approval for homosexuality. The California Supreme Court did this when it struck down the first anti-gay-marriage proposition on grounds that it violated the state constitution. No it didn’t. California has approximately the same equal protection clause as the 14th Amendment. This clause can’t change the definition of marriage any more than the federal clause can. Homosexuals have the same right to marry people of the opposite sex that everyone else does. They do not have a right, legal or moral, to marry each other.
Californians are fighting back against the tyrannies of majority and minority that are being imposed upon them. I have no problem with conservatives who think that gay marriage SHOULD be approved by society, but to force this approval under the guise of individual rights is perverse.
Gay marriage nothing like interracial marriage
The contrast between interracial marriage and gay marriage goes far beyond the simple fact that marriage has traditionally referred to a man and a woman. Even if there was no pre-existing right to heterosexual marriage, bans on interracial marriage would still not stand up to constitutional scrutiny.
In the absence of a constitutionally recognized fundamental interest, the test for constitutionality is the rational relation test: is a ban on interracial marriage “rationally related” to “a legitimate state interest”?
The answer is “no.” There is a legitimate state interest in maintaining the genetic quality of the next generation, but miscegenation laws are an irrational way to pursue that state interest. (The “rational relation” test is not in general a rationality test. Only the relation has to be rational, not the law itself. But if a law is positively irrational, that can call the rational relationship into question.)
Regarding the genetics of the next generation, individuals are motivated on their own to find the best partner with which to have a family. Since desirable qualities are spread throughout all races, and since the qualities of any individual can only be judged by those who encounter them as individuals, the expected best outcome for the next generation results when individuals are free to pick their own mates as best as they can. Any interference with this free choice will only block some people from accepting their best available choices, which will harm the genetics of the next generation.
Similarly for parenting quality and for every other legitimate state interest relating to mate-choosing. Thus rationality calls for free choice, and any discrimination against free choice is positively irrational. Interracial couples still have no right to approval. It is just that disapproval in this case fails to meet the most basic test that ANY law must meet (or should have to meet) to pass constitutional muster: that it cannot be positively irrational.
No such affirmative argument can be made in the case of gay marriage. On the contrary, limiting marriage to a man and a woman is perfectly rational for an institution designed to foster the bearing and raising of children. The specific accommodations that society makes here and there for married as opposed to unmarried couples are generally aimed at the accommodation of children.
Homosexual couples CAN have children, but do so at a much lower rate than heterosexual couples, and it is perfectly rational for society to focus its approval and its various accommodations for children towards those who for the most part are bearing and raising the children. The object of such laws is to promote the welfare of children, not to assuage the feelings of adults.
Bans on gay marriage are not just rational, but compelling
If homosexual couples are allowed marry, they will have to be given equal access to babies for adoption. After all, if society has determined not just that homosexual marriages should be approved, but that homosexual couples have a RIGHT to approval, then how can that approval be denied by any part of society? But in fact there is plenty of evidence that children need to be raised by a mother and a father. Children don’t always get what they need, but it is certainly rational for society to try to improve their odds.
Indeed, society’s interest in protecting children is compelling, and to protect children from homosexual adoption, it would be necessary to ban homosexual marriage. This is the test that the Court applies when a constitutionally recognized “fundamental interest” is at stake. A law that infringes fundamental interests must be “necessary” to “a compelling state interest.” Thus even if the courts were to pretend that equal protection can change the definition of marriage, there would still be a strong case to make for the constitutionality of a ban on homosexual marriage.
In sum, the question is whether we are going to take our fundamental institution for supporting the bearing and raising of children and turn it into something very different, something for everybody, based on the fraudulent idea that homosexuals somehow have a RIGHT to approval.
No. They have a right to be tolerated, which they have been granted in full. Now they answer that liberal generosity with this illiberal demand for approval. I would like to see society move in the opposite direction and use the legitimate powers of the majority to suppress public homosexual displays. That is what the right to privacy is really about. It is the public’s right to put behind closed doors that which society is only required to tolerate.
Make the gang trash pull their pants up in public. Give tickets to the parents of foul mouth teenagers. Keep the porno-parades in San Francisco, and ban gay marriage entirely.
ADDENDUM: Privacy and abortion
The Supreme Court has proclaimed a right to abortion, pursuant to a proclaimed right to privacy that is held to be implicit in the Constitution. Suppose privacy rights were to be understood as I suggest in this essay: as a way to allow some protected activities (activities that do not harm the direct interests of others) to nevertheless be banned in public (when only indirect interests are harmed by such a ban). Would such a right to privacy still imply a right to abortion?
Absolutely not. Abortion involves the most extreme harm to the direct interests of the unborn. That means it is not a protected activity in the first place, which means it cannot be protected by a right to privacy.
The ordinary language meaning of privacy says the same thing. Something is a private matter if it does not harm third parties. A child, born or unborn, is obviously a third party.
This does not mean that there is no natural right to abortion. I think there is such a right, stemming from the fact that in many cases, not terminating a pregnancy will mean that another child who would otherwise have been conceived at a later date will no longer be conceived. This is just an extension of the recognition by anti-abortion advocates that an abortion means a child who would have lived does not live. Carrying the same logic one step further, there are also actual children who some years down the road will not be born if their parents do not have abortions today. In fact, we can name millions of these children. Every child born to a parent who earlier had an abortion is a child who would not have been born otherwise.
These lives can no more be discounted than the lives of the unborn in the womb, and in my probably not humble enough opinion, the only people who can choose between these lives are the parents. That makes it a private decision in the private-sphere vs. government-sphere sense, but not in the common language sense of there being no third party interests that need to be accounted. It is just that the best people to account those third party interests (whether to have children now or later) are the parents.
Abortion is about the last thing that can be fit under the unenumerated rights of the Ninth Amendment. Because the direct interests of the unborn are at stake, it does’ not fit under Mill’s principle of liberty (and hence not under the rights of the Declaration, which Mill’s principle logically articulates), and it was not a historically recognized right, available for the people to “retain.” Thus until a constitutional amendment is passed that protects a right to abortion (an amendment I would gladly work for), it ought to be for the states to decide.
The advocates of the “living Constitution” are wrong. The constitution does not say whatever progressive opinion wants it to say. It says what it says, and if we don’t like what it says, it is incumbent on us to amend it, not re-interpret it to suit our will.
With all due respect to Mr. Rawls, I didn’t notice any reference to 10th A. protected state sovereignty in his article. In fact, while Mr. Rawls beats the drum for homosexual rights, he is evidently not seeing the forest for the trees, not understanding that Lawrence v. Texas is just another example of the USSC’s scandalous subversion of state sovereignty.
I would appreciate if Mr. Rawls would address the following question. Given that the Constitution says nothing about euthanasia, abortion and homosexuality, the 10th A. automatically reserves government power to regulate such issues to the states. So why did the USSC respect state sovereignty by deciding not to examine the Terri Schiavo case on one hand, while ignoring state sovereignty with respect to legalizing abortion and homosexual behavior on the other hand?
“Olson and Boise argue that under the equal protection clause, that right must be recognized equally for all Americans, regardless of sexual orientation, allowing anyone to marry anyone.”
Well then, surely they will not mind it when Mormons marry more than one wife. Nor will they mind it when X number of people of varying gender decide to intermarry with each other because ” anyone [can] marry anyone”
I saw a car out yesterday with “Marriage is a right.” written on it.
More than anything, it really bothers me that homosexuals are trying to ram this down everyone’s throat. Never mind that a vote was held AND the MAJORITY of people WANTED THE BAN.
I continually hear “we are a democracy” from many people (even though we are a constitutional republic). I guess the whole “democracy” thing only counts when it is in their interests.
I have to say this. If given that access (and this includes homosexual couples who may already have babies), then they need to “man up” and take FULL responsibility.
If a divorce happens, and one partner ends up with the child, the other partner MUST PAY CHILD SUPPORT. How else can we take it seriously when one of them decides they don’t want to do this?
I know in one case, a lawyer was involved with the lesbian couple and the sperm donor(a friend of theirs). He forfeited all rights to the child in exchange for a binding contract that he would not have to pay support.
The lesbian couple decided to split. The non-biological woman claimed “not my child, not my DNA. I’m not paying support!” The court nullified the pre-existing contract and the man is now paying support.
Some cases as of this writing:
Sperm Donor To Lesbian Couple Ordered To Pay Child Support
Lesbian moms seek child support from sperm donor 18 years after the baby was born.
UK:Fireman sperm donor to fight CSA
If homosexuals want equal rights and all that, then show society and take on that responsibility.
As it stands now with those cases holding the biological donor as responsible, I would never vote for nor support homosexual couples having children. They would look for the easy way out and sue the donor rather than doing what their heterosexual counter-parts would do – pay support and face the hardship!
For a lesbian to stand up and say “I did not donate a sperm to that baby” or for a gay guy to say “I didn’t give up an egg for that child” … AND NEVER WILL BE ABLE TO!
If you can’t take that responsibility, then why should access to having children be granted at all?
If DOMA is struck down in the Supreme Court it’s all over. Doesn’t matter if your state forbids same-sex marriage, the “Full Faith and Credit Clause” circumvents it (which is what DOMA prevents). All that homesexual couples will have to do is get married in a MA, VT, IA, etc., and move to another state that doesn’t allow it. The new state will have to recognize the marriage…game over.
This is why gay/lesbian groups are going to state-friendly legislations and courts….to essentially build a “concensus” so the Surpreme court will take up the matter (DOMA) and officially rule on it.
Mr. Johnson is of course correct that the Constitution does not explicitly mention a right for homosexuals even to have their behavior tolerated. It does, however, assert in the Ninth Amendment that there do exist unenumerated rights. My essay looks at the implication of recognizing and adjudicating the most obvious expression of these unenumerated rights: the inanlienable rights of the Declaration of Independence. As I have analyzed it, these rights say that homosexuals DO have a natural right under the Constitution to be tolerated but DO NOT have a right to marry.
I think that the logic for this interpretation is strong enough to justify imposing it as a restriction on federal law, but federal law is ALL that the Ninth Amendment originally restricted. That makes it highly questionable whether even the most ineluctable interpretation of the unenumerated rights of the Ninth Amendment can properly be imposed on the states.
To this extent I’m in agreement with Mr. Johnson. The good thing about Lawrence v. Texas is that for the first time the Court recognized a general protection for liberty. That was a pretty glaring omission for a country declared to be founded on an inalienable right to liberty and dedicated to securing the blessings of liberty. Still, this general protection for liberty should not be automatically extended over state law, as Lawrence did.
To secure a general protection for liberty, we really ought to pass a constitutional amendment, recognizing the full natural liberty of individuals, and barring ALL levels of government from infringing this natural liberty. If we do this, there will still be no right to gay marriage, because there is no natural right to gay marriage.
Some will claim a natural right to euthanasia, polygamy, etcetera. Like gay marriage, these claims can be analyzed though moral reason. A good general rule to include in any constitutional amendment that establishes general protection for liberty would be to say that where the principles of liberty do not establish a clear liberty right, the matter should be left for the states to decide.
In the present case, the principles of liberty ARE clear: homosexuals DO have a natural right to be tolerated. They do not have a right to marry, or to be approved in any way.
The SCOTUS only recognizes the Declaration of Independence as a Document of historical significance. It does not however recognize it as a document holding any legal significance on Constitutional issues.
The notion that there is a constitutional component to certain sexual compulsions is patently absurd. If marriage is a “right”, then so is whatever anyone desires.
What of nudists? Why are they walled off in “colonies”? They can’t help the way they were born. Hell, we were all born naked! As long as nudists have to suffer the indignity of dressing up and pretending to be clothesists when they go to the mall, baseball games, whatever; none of us can claim to be living in a free country.
Nudists are a good example of the difficulty that any general protection for liberty runs into. They aren’t harming anyone. They just think that because the human body is beautiful or natural or whatever, it should be seen. Mill’s distinction between direct and indirect interests allows such cases to be handled. The belief that the human body should be seen is an interest in what people think. That makes it an indirect interest, not a direct intrerest. Without direct interests at stake, engagement in this behavior in public spaces is properly subject to regulation by the majority. Under a general protection of liberty, people would have a right to practice nudism in private no matter what the majority thinks, but they would not have a right to go nude in public.
This may be why the founders did not include any general protection for liberty in the Constitution. They would have had to solve this public-private question first, and they didn’t know how. Mill did not introduce the distinction between direct and indirect interests until the mid-1800s, and he himself never recognized that this distinction provides a basis consistent with liberty for forcing some behaviors which do not directly harm other people out of the public sphere. In fact his book On Liberty screws this up. When it comes to things that should be banned in public but not in private, he violates his own principle of liberty and starts calling mere offense a harm.
Now Lawrence v. Texas has introduced a general protection for liberty into American constitutional interpretation. This will quickly lead to the need to distinguish public and private behavior, and Mill’s distinction between direct and indirect interests is the way to do it. One of the question it answers is gay marriage. Since gay marriage is about what other people think, it is not a right.
As for whether there is a right to marriage between a man and a woman, the Court’s finding in Loving v. Virginia is very interesting. It does not explicitly refer to the Ninth Amendment’s assertion of unenumerated rights “retained by the people,” but its language neatly fits into this structure. It even adverts (without attribution) to the inalienable rights of the Declaration:
This makes Loving a clear predecessor to Lawrence, and a powerful companion. Where Lawrence was explicit in searching out the unenumerated rights of the Ninth Amendment, Loving is nearly explicit about finding these unenumerated rights in the Inalienable rights of the Declaration. Pursue that interpretation logically, and the result will be Mill’s principle of liberty.
@Alex
Is there such thing as a Right? Who says we have a right to anything? In the US does Right start and end at the Bill of Rights? Sure there are laws and laws are added and appealed as time goes by.
As for your concern over gays having children….what would you do? So if a woman has a child and later lives with another woman in a gay relationship – do you want the government to come in and seize the child? Government ‘approval’ is baloney and is a thin disguise for homophobia. Either gay people should be able to raise kids or not. Adding marriage is a red herring.
Besides I know plenty of people who are married and do not have children by choice. Marriage is not soley about having kids.
@Hawk
Society seems to cope pretty well with heterosexual couples when a child is not biological theirs – through adoption – either by one or both parents. Adoption is legal – so their is no escaping responsibility whether you are straight or gay.
Really think you guys should think out of the box on this one – not everyone should be forced to live in a Stepford Wife Chocolate Box ‘reality’ where we all have to be straight, marry and have 2.4 kids. Plenty of people live perfectly happy lives which don’t conform to the norm. I’m married and I have 2 kids – but because I happily choose the norm doesn’t mean I think everyone else should do the same. I think at the end of the day – some of you are probably religious and just don’t like gay people and would rather then whole thing was outlawed and just go away. If you believe in freedom of choice then you have to get over your prejudices. Seeing two guys get married looks weird mainly because we haven’t seen that before. But in time – like the grudging acceptance in some quarters of homosexuality – that will also become more accepted.
This is one of those topics that I think a simple middle ground exists that both conservatives and liberals can agree to. Basically, things would be much easier if the government got out of marriage altogether. I’d love to see us transition to a system that followed these guidelines:
1) CIVIL UNIONS: Any 2 (or more) people should be able to enter into a civil-union contract, which may stipulate things like
* joint ownership of their combined assets/liabilities,
* joint guardianship of their children,
* they grant each other the right to make medical / legal decisions in case of their own impairment.
* and so on…
The governement’s role with respect to these civil-union contracts should be nothing more than legally enforcing the stipulations of the contract.
Note: in this context, I see no problem with a man and 4 women entering into a civil-uinon contract (given an adherence to the existing rules of legal contracts such as forbidding coersion, being of an age of legal consent, etc.). Nor do I care if two family members, e.g. brother/sister, do so.
2) PARENTING: Legal gardianship should be a privilege granted to individuals who can demonstrate the ability and intent to provide a healthy upbringing to the children in question. The privilege could be granted by default to the natural parents, but could be stripped away should it become clear that they are not providing a healthy upbringing. Though no two situations will be the same, I’d expect some objectivity to the question of “healthy upbringing” in the form of minimal quality-of-care standards established by a recognized source of authority on pediatric health, such as the AAP.
The artical mentioned an interest to “protect children from homosexual adoption”. Here, here! If the AAP, as a recognized authority on pediatric health, felt a conclusive evidence-based case had be made that “any 2 people who both have a penis or both have a vagina are *fundamentally* incapable of providing a minimum level of care for children” (this seems so obvious that it’s hard to imagine the case not being made), then this should and would be included in the aforementioned guidelines, and children would be protected. Lacking such a generally-applicable guideline, I suppose any need to “protect children from homosexual adoption” would have to be met on an individual basis, e.g. by demonstrating each specific homosexual couple was likely to do the sinster things we know all homosexuals *really* want to do with children.
Once legal guardianship has been established, it is in society’s interest that all children be raised in healthy environments. To this end, tax deductions for people who are raising children, public education, public pediatric facilities, etc., seem like sensible investments for society to make. This, I believe, is the appropriate slot for many of the incentives/benefits we currently grant to legally married couples (irrespective of their desire or intent to raise children).
3) WHAT “MARRIAGE” BECOMES: The concept of marriage, once removed from the legal realm, would be entirely in the social / religious realm. Though 2 men could walk around talking about each other as “spouses”, the morally superior True Christians of society would be free to refer to them as “bachelors”, and would never need to give tacit approval of such men’s disgusting and degenerate lifestyles. Christians could even go further, e.g. excluding the men from joining such desirable activities as “married couples bible study”, if not from entering their congregation altogether (just imagine how crushed these vile men would be!).
My over-arching point is that “marriage” should be a social/religious institution similar to “baptism”. Consider: my daughter was rinsed with water two weeks ago; and from the Lutheran church’s perspective, she is now officially “Baptised”. From my atheistic perspective, she probably had a little dust rinsed off her head. And from the perspective of many Christian sects, infant baptism doesn’t “count” and she can’t be “Baptised” until after she accepted Jesus as her Saviour. The point is, regardless of the perspective, I have never, ever, heard anyone express a wish to have Congress get involved and dictate a legal definition of “baptism”… and this WORKS PERFECTLY. Note particularly that the lack of legal definition DOES NOT diminish the value and meaning of my daughter’s baptism in the eyes of the religious community. Just think of all of the time and energy we’d save if marriage was placed in the same social realm…
@Kevin
Why should the term marriage suddenly be owed by religion (you also mention social but what does that mean)? As far as I can see the history of marriage isn’t clear in that it hasn’t been purely been owed by religion. Many people throughout history have been married and have either been atheists or at least religion wasn’t a driving factor. Marriage is already a legal and understood term. Because those mainly from a religious background object to gays being married – why does that mean we have to change the term? Whereas baptism is a religious term. Because two people marry that has little to do with approval by anyone but those involved. I don’t see why your 1st condition can’t be ‘Marriage’.
When a man or a woman find a spouse, they may marry thinking that they will live ‘happily ever after’. They may think that nothing can disturb their happiness and that their life together will be like sunshine every day without any clouds. They may also doubt whether there will be any serious problems in their relationship because everything has gone so well so far.
However, the fact is that we live in an imperfect and fallen world in which nothing is as it was when Adam and Eve lived together in Paradise. In practice, this imperfection means that when people get together, they also bring to the marriage their own difficult personalities and especially their selfishness, which is a result of the Fall of Man and certainly the biggest reason of homes breaking up these days. If we do not want to be freed from this selfishness, it can greatly harm the relationship.
In any case, below we are going to deal with this area especially in the light of the Bible. We are going to concentrate on those common mistakes and ways of doing things of which we might be guilty because we have not seen them in ourselves, nobody has ever told us about them, or because we have not understood them in the light of the Bible. If you notice any of the issues we are going to bring up in your own life, you can be freed from them; especially if you ask for God’s help.
http://koti.phnet.fi/elohim/help_to_marriage
Like civil rights, the gay marriage/adoption issue will be resolved when homophobia itself is no longer economically beneficial. For example, I know a real estate broker in Maine who was extremely po’d when the state house passed a marriage amendment…….until the sale of his biggest listing was put on hold in light of a petition to overrule it. The gay couple who made the offer is looking for a second home in a state where they could be recognized as legally married.
Look for gay marriage rights to inject $$$ into New England’s state and local economies in years to come. Gay adoption will free up state $$$ spent on foster services, and gay families will, ultimately, contribute to stimulating home prices and a windfall of fiscal payoffs, including increased private/public school revenues through higher enrollment and home values. There will also be observable consequences in the retail sector across the board.
It was easy to be a racist shop owner when blacks had no money. It was easy to be a segregationist shop owner when blacks had less money. Things changed, slowly, when blacks became their own market, and changed radically with the emergence of black musicians/entertainers, athletes. And today, with black professionals, racism has pretty much disappeared amongst educated and successful capitalists.
The same is true for homophobia. You’d be a hard to pressed to find a hardcore gay-bashers at Bill and Melinda’s cocktail parties, any Wall Street traders, or Main Street go-getters.
Capitalism has zero tolerance for anything that hinders exchange, and it’s only bottom line: profit. Homophobics are left over from a time when homosexuality was a threat to assets, armies, and kingdoms……literally, a long time ago. Homophobia is isolated to those whose economic vitality has not yet benefited from same-sex relations in any observable way…..just as racism once did. In fact, bigots are not really bigots…..just people who haven’t profited off those they hate on, or aren’t educated enough to see how it happens.
The moral qualms over homosexual marriage are so naive to market dynamics, and so economically irresponsible as to be infantile. They will survive only so long as the term “regulating the market” is taken literally….and not understood in its fullest scope: regulating “morality” is not a moral issue, it’s an economic one.
Personlly, I am opposed to marriage as anything but a religious union. If I were to support any legislation, it would be the criminalization of heterosexual privileging….which makes about as much sense as homosexual rights. I don’t support either.
Like most things, the market will take care of homophobia. Capitalism judges nobody.