How legalizing gay marriage undermines society's morals

The Christian Science Monitor ^ | December 09, 2003 | Alan Charles Raul

[jwalsh07]

The Court does not lead society, it follows it, simply acknowledging what direction society has already taken.

I can't get past this Luis, it is indicative of an irrational man suffering from cognitive dissonance.

[Luis Gonzalez]

There are two distinct and separate issues here, having to do with two distinct and separate institutions, governed by two distinct and separate sets of laws.

There is marriage, and there is Holy Matrimony.

A government licensed magistrate cannot perform the rites of Holy Matrimony, and the clergy does not perform civil ceremonies.

The definition of Holy Matrimony will remain unchanged as long as there is a Church, as the core beliefs are not governed by societal changes.

Marriage will be defined in accordance to the will of society at large.

Just as the definition of marriage went from "the union of one man and one woman, both of the same race", to "one man, one woman", it will end up as "the union of two persons".

Judicial activism is only "bad" when it derives from partisanship within the Court.

[Luis Gonzalez]

"I can't get past this Luis, it is indicative of an irrational man suffering from cognitive dissonance."

So, in other words, you believe that there were no abortions in the Us prior to Roe v. Wade.

You want irrational?

Find yourself a mirror.

By the way, let it be noted that (as usual), you have already begun the personal attacks, and posts filled with zero substance.

[jwalsh07]

Luis, you are running on emotion. Forget the fact that there was no hue and cry for the right to kill unborn babies in the early 70's, lets assume their was.

Assuming there was you seem to think it is the courts imprimatur to get a whiff of populism and then make laws from the bench that accord with that populism.

That is not the purpose of the courts, it is the legislatures duty to make laws. The US Constitution guarantees a republican form of government to every state in the union. Judicial oligarchy is not a "republican form of government".

Thirty Eight states have passed DOMA. The people of Massachusetts last year gathered enough signatures to put DOMA on the ballot for referendum. The Massachusetts Constitution explicitly states that marriage is the sole province of the Governor and the legislature. And yet you claim that the Mass SJC is not engaging in judicial activism or if it is it is justified in doing so by populist sentiment.

In either case your idea of the duties of courts to intrepret and not make laws are 180 degrees out of phase from mine and never the twain shall meet. It is basically senseless to carry on the debate becasue the only thing getting any sharper is the animosity.

[Luis Gonzalez]

"Forget the fact that there was no hue and cry for the right to kill unborn babies in the early 70's, lets assume their was."

LOL!

You're kidding, right?

I was there in the early 70's.

Free love, women's rights, burn the bra, and have sex without facing the consequences.

From the moment Roe v. Wade was handed dowen by the Courts, it was welcomed by a large segment of the society.

At least be honest when we "debate".

Let's stick to the evils of Judicial activism, shall we?

In your opinion then, I guess that "Brown v. Board of Education" was a good example of the evils of Judicial activism, because it overturned "Plessy v. Ferguson" which was a great decision by the Court as it was based on the right of the State to enact and enforce "separate but equal" laws.

Am I starting to understand you now?

[jwalsh07]

Am I starting to understand you now?

No Luis, you don't understand anything but it is quite sad to see you resorting to race baiting.

[Luis Gonzalez]

"Marriage is one of the 'basic civil rights of man'...the right to marry means little if it does not include the right to marry the person of one's choice." -- Earl Warren, majority opinion on Loving v. Virginia.

The Massachussets Supreme Court gave the legislature a period of time to re-write laws that they found to be in violation of their State Constitution because they violate the "basic civil rights" of marriage to the person of one's choice..

I don't see your point about Judicial activism here.

[Luis Gonzalez]

Race baiting?

I am discussing Supreme Court cases which led to this decision by the Massachusetts Supreme Court, as well as cases of clear Judicial activism; both cases mentioned were such.

It is noted however, that you continue avoiding debate, and now you've lowered yourself to the level of trying to play the race card.

[Luis Gonzalez]

"Thirty-eight States have passed DOMA."

In 1948, when 30 states had laws on the books barring interracial marriages, the California Supreme Court, in the case of Perez vs. Sharp, ruled that the state's anti-miscegenation law violated the due process and equality guarantees of the Fourteenth Amendment, more than 90 percent of Americans were against the decision, and supported the laws. At best, they believed such marriages went against the traditional definition of marriage or against God's law. At worst, some wanted to "preserve racial integrity" by preventing a "corruption of blood" and "a mongrel breed of citizen."

Sometimes, a whole bunch of people agreeing on a bad principle is nothing more than a clear indication that people can be wrong in large quantities.

[Luis Gonzalez]

"This is what the Massachusetts Constitution says Luis. But to judicial activists, the words contained in constitutions are meaningless as witnessed by the majority opinion in McConnell V FEC."

I love the shallow waters you thread!

The Supreme Court of the State of Massachusetts found the law as written by the Massachusetts legislation to be in violation of the civil rights of part of its citizenry, and ordered the legislation to bring it into compliance with the State's Constitution.

All completely legal and within the letter of the State's Constitution.

Yet, you call this activism.

[Torie]

Assuming that judicial activism was necessary and needed as to matters of race (actually, the legal superstructure for it was far more secure than it is for gay marriage, because the 14th amendment was written with race in mind, and race is one of those indelible and visible things that affects us every waking moment), does that give SCOTUS a hunting license wherever under the sun it chooses to go? Race in some ways is a sui generis issue, and to use it as the linchpin for analysis about everything is misguided. Race certainly killed off what was left after the Civil War of states rights as a legal doctrine with any legal traction. One can debate about whether that was a good thing, or a bad thing, but it certainly was and is an indelible legacy. Where might the judicial hunters (poachers?) go next, and where are the boundaries, and how does one enforce such boundaries, assuming one thinks there should be any?

[Luis Gonzalez]

We have veered away from the discussion at hand, the decision by the Supreme Court of Massachusetts, to a discussion about SCOTUS.

In this case, the SCOTSOM (Supreme Court of the State Of Massachusetts) acted in perfect accordance to the State's Constitution.

They reached a decision that the current laws pertaining to marriage in the State violated the civil rights of some of its citizens, and ordered the legislation to re-write the laws to bring them into Constitutional compliance.

What's the problem with that?

Answer: most people in here do not like the decision, and will call it activism for that reason.

[Torie]

The Mass Constitution didn't have any language I don't think much different from the US Constitution, so thus the segue. In any event, state constitutions don't interest me much. I think they should all be put into the dumpster, the sooner the better.

[Luis Gonzalez]

It doesn't, but the way that the Mass. SC wrote the opinion, giving the legislature a number of days to re-write the guidelines for the issuance of marriage licenses in the State, is in no way Judicial Activism.

If SCOTUS had done the same, then there would be grounds for claiming activism.

[Torie]

I'm sorry. You lost me. A court striking down a state law, that has heretofore been for about 200 years deemed in accord with the pertinent constitutional language, and giving time to the state to rewrite it to the court's liking, is not activism, but if SCOTUS does the same thing under its reading of similar language in the federal constitution, it is, loses me on both counts. Maybe it is incipient senile dementia on my part.

[Luis Gonzalez]

A group of citizens of the State of Massachusetts challenged a longstanding State law. The Court found that law to be in violation of the State's constitution and "sided" with the citizens.

The fact that an unconstitutional law stood for a long period of time does not make it constitutional; California's Supreme Court struck down anti-myscegenation laws that had stood for a long time and those laws are in no way by anyone considered to be constitutional, nor is the Court's decision considered to be "bad" activism.

My point was that if SCOTUS had struck down the State Law, rather than the State Court, I could have understood the claim of activism.

Whether I personally approve of same sex marriage or not is not the case here, what I do believe that the State has no logical legal reasons to deny marriage licenses to same sex couples. The only argument that I've seen on this subject is A) it's always been done this way, and B) it's a sin.

Well, things (and society) change, we don't stick red "A's" on people guilty of adultery any more, public nudity is against the law, except of course in South Beach , and I can buy beer on Sundays (you may not be able to in your State, but I can).

Some changes came about as a result of changes in legislation, others as a result of Court challenges, and some laws we just stop enforcing (topless German stewardesses on the beach in Miami), now, in Massachusetts, gay couples may be able to get married without having to wait for their legislature to build up enough cojones to actually change the State's laws.

America will go on.

[NutCrackerBoy]

Correction to my post. In Massachusetts law, marriage is defined as a union of a man and a woman. I erroneously said its Constitution.

[NutCrackerBoy]

The only argument that I've seen on this subject is A) it's always been done this way, and B) it's a sin.

Sorry to see you haven't been reading my posts.

[NutCrackerBoy]

The fact that an unconstitutional law stood for a long period of time does not make it constitutional.

Correct. Nor does a longstanding court doctrine make it appropriate (e.g. SCOTUS 1947 creation of absurd restrictions on religious expression in state-run facilities based on a mistaken reading of the First Amendment).

In this case, the Massachusetts law in question is not only long in years, it is very much in good standing, and has a strong rational basis in the promotion of stable families. It is not unconstitutional except under a very questionable ruling by judicial activists.

[NutCrackerBoy]

Several times I have brought up the history and fate of the Equal Rights Amendment as the proper prototype for where gay marriage is going. I'm surprised this hasn't been emphasized by pundits yet (to my knowledge).

The ERA insanity was sailing toward ratification when it hit that coral reef of reason named Phyllis Shlafly. Ms. Schlafly has already weighed in on gay marriage (guess which side?) but noone seems to have noticed.

It doesn't matter who it will be whose arguments will sway the country to leave marriage alone. What does matter is that it will happen.

One of the checks and balances of the open society is blind justice. We've developed egalitarianism almost to a fault. We stage cultural interventions to enforce the notion of equal opportunity. We know that without such, it is all too possible for minority cultures to stagnate for generations. But the unchecked impulse to forcibly apply egalitarianism can cause harm. We've seen it happen with communism.

It is not easy to prove one way or another whether gay marriage is an appropriate candidate for even-handedness under the law.

Women are not the same as men, to that everyone agrees, but we agree the law should treat women and men equally in most circumstances. It is equally uncontroversial to aver that homosexuality is not the same as heterosexuality, but we are not agreed as to whether they should ever be treated equally.

Ms. Schlafly was most successful by forcing us to fully face the inevitable consequences of full equality for women under the law. But again, noone has accomplished that splash of cold water to the imagination for gay marriage yet.

For the role of business executive, it appears that male and female candidates are interchangeable. For the role of mother and primary care-giver, PC says the father can do an equal job as primary care-giver. Arguable, but luckily there is no controversy at the moment about these roles. For the role of leading the family unit, are homosexual couples interchangeable with heterosexual couples? There is nowhere near a consensus that they are interchangeable.

It really chafes the libertarian-minded among us to look at the problem from the point-of-view of society instead of merely gauging the satisfactions of the individuals involved.