Skip to comments.Michael McConnell: The Constitution and Same-Sex Marriage
Posted on 03/22/2013 7:50:50 AM PDT by SeekAndFind
For most Americans, the Supreme Court cases being heard on Tuesday and Wednesday next week are about same-sex marriage. But the casesHollingsworth v. Perry (the Proposition 8 case from California) and U.S. v. Windsor (the Defense of Marriage Act case)also are a test of the nation's democratic and decentralized constitutional structure. These cases thus are not just about marriage. They are about how we reach decisions regarding matters of deep moral significance in our federal republic.
We learned from Roe v. Wade that the Supreme Court endangers its own legitimacy and exacerbates social conflict when it seeks to resolve moral-legal questions on which the country is deeply divided without a strong basis in the text of the Constitution. The court sometimes intervenes when the legislatures of the 50 states are approaching a consensus. When it jumps into a live political controversy, the justices look like they are acting like legislators.
The system today, without the Supreme Court's intervention, is working as it should. Representatives of the people are deliberating. "We the People" are thinking. So far, nine states have extended marriage to same-sex couples; many others chosen to explicitly endorse traditional marriage. Those choices distress advocates on either side of the matter when their wishes have been disappointed.
But when all of us have an equal right to be heard on an issue, and to participate through our representatives in making the decision, it is easier to accept the outcome than when unelected judges make moral pronouncements from the bench. Change that comes through the political process has greater democratic legitimacy.
Moreover, in states where same-sex marriage has been made legal, legislatures have taken care to provide generous protections for people and institutionsespecially churchesthat conscientiously disagree. This is good for civic harmony and for achieving long-term position of mutual respect.
(Excerpt) Read more at online.wsj.com ...
A very thoughtful discussion on a complex problem.
Thanks for posting it.
If banning homo marriage is unconstitutional under the 14th amendment than so is the progressive income tax.
Well written piece. His suggestions make sense to me. Time should be used to see how this issue evolves.
A progressive income tax is constitutional because the 16th Amendment explicitly authorizes it.
The author is still operating under the presumption that the institution of marriage is a human convention and can be redefined legally by human agents. My presupposition is that marriage is instituted by an immutable creator. Both presuppositions are religious statements, one in affirmation of and one in denial of a transcendent creator. Thus an appeal to the separation clause of the the first amendment against a religious recognition of marriage is to separate from one religious principle, but to establish the other religious principle as law. The deceleration of independence appeals unashamedly to a creator; so to presume that the same framers then sought to legislate against recognition as a societal foundation is dishonest and logically fallacious. For those who hold the same presupposition as the framers declared as foundational to the establishment of the republic likewise affirm the courts are beyond their jurisdiction. Only God can “re-define” that which He has already instituted and regulated; for men in black robes or legislators or voters to attempt such folly is akin to the court redefining the gravitational constant. They can write it on the books, but the higher magistrate will only be persuaded of their attempted coup and usurpation. This will not end well.
Wrong, the 16th amendment authorizes the income tax, but the progressive rates would violate equal protection under the law. Everyone should pay the same rate.
Not that I agree that the Constitution says that because the law is based on income so if you make $X, your tax is X% and everyone abaides by that law. Just like the marriage law is man and woman. Even gays have the right to marry someone of the opposite sex.
No court has ever made any ruling remotely close to that, and since the first income tax authorized under the 16th amendment was progressive, it would be hard to argue that the original intent of the authors of that amendment wasn't to authorize progressive taxation.
All religions and anti-religions are equal in modern America.
Islam, Mormonism, the church of the gay goat lovers, the church of atheism, Catholic, Episcopalian, any and all the same in equality yet with different ideas of what marriage is.
You may be certain, I am less certain.
I expect the Court will find a way to finesse the issue and make a narrow ruling that doesn’t satisfy either side.
This modern dogma is irrational and untenable. Ethics necessarily are the result of religiously held postulates. For example the Christian has a reason to legislate against murder as moral crime that has a civic remedy, but if one declares all views equally valid, one of those views might be that murder is not morally odious, but preferred in many cases, like abortion, euthanasia for the infirmed or the infidel. Religious commitments underpin moral judgements and moral judgements inform civic law. It is not possible to have a neutral society; neutrality of necessity is anarchy and anarchy leads to tyranny and when the population is bound by the fetters of the tyrants the only rule of law is violence.
Yet certainty has created the legal environment where you may be skeptical. The opposite will prove a failure.
Your writing could be a little more clear if you put some effort into it.
If a church is to make the law, for instance in telling the military who is married and who is single among it’s ranks, then which church makes the decision, the Episcopalians or the Catholics?
Agreed. It would also be very hard to argue that the original intent of the author's of the 14th amendment was to declare that states must recognize same sex unions as marriage.
I hold that sexual orientation is one's own business, but marriage is between a man and a woman, with one historical variant being between a man and several women. That is simply the definition of what it is. That definition has no good reason to be changed, but it does have a bad one. In a free country nothing is stopping people from starting a cultural institution which honors or sanctifies same sex couples, but trying to simply declare that such institutions are marriages is like a small brewery selling its beer under the name Budweiser in order to make it more popular. I say the brewery should sell its beer under its own trademark and let its success or failure be determined by its quality.
Marriage is a 6000+ year old institution that in all cultures and all peoples up to the present time has always either meant a union between one man and one woman, or between one man and several women in order to produce and raise children.
If some idiot comes up with a new religion that declares the value of pi to be 934.33, then they are simply wrong, even though they claim that they are religious.
Yes, and how does that help us in preserving marriage in America, if we let the left do what they want and legalize what they want?
I am not understanding your question in the context of my post...could you clarify it a bit?
These are legal and political battles that are being decided in the voting booth and the courts, our individual religious beliefs are not enough to fight legalization with.
Most everyone on this forum shares the same religious belief on marriage, but how does telling each other that, help us stop homosexual marriage and polygamy in America?
Now a particular church making a civic law is expressly forbidden in the first amendment and in violation of the principles of jurisdictions found in the Bible. Law is based on religiously held tenants, not not by sectarian institutions. But to your other point, civil law is doomed to failure when it attempts to legislate against reality. This is the current failure of our current unicorn economic policy, anti-family law and regulation that attempts to force a work-around of physics. Only working in harmony with God's laws, might a society reasonably expect to prosper and thrive.
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