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Gay Marriage Redux
Posted by Stephen Green  ·   7 February 2005

I've said my piece on this issue too many times - so how about a fresh perspective already?

Comments

It all hinges on whether a marriage is a right. I have long defined rights as something that you can do on your own; if it requires the assistanc of another, it is no longer a right, but a privilege (for lack of a better word). So, for example, you can stand on the street corner and preach, exercising your right to free speech; but you do not have the "right" to have someone else speak for you, or print your tracts. That requires negotiation with the other party. Likewise, healthcare cannot be a right, because it requires the cooperation of individuals to provide service.

Marriage is an institution, not a right. It has clear boundaries, defined by the concensus of the population. The population came to that concensus based on the concious or unconscious recognition of marriage as the best situation for children.

The state should not interfere in private relationships, absent a compelling interest. Most people agree that the need for children to be raised in a stable family unit is that compelling interest- therefore it the state discriminate in favor of one man and one woman in a monagamous unit.

The judiciary has no business changing the marriage definition to a right so it can be arbitrarily redefined to mean anything a given set of adults want. It was even more outrageous to see the Massachusetts court dictating to the legislature what the law must be; this is true violation of the separation of powers. Judicial tyranny is a signficant danger to our democracy.

Those who support gay marriage should work through legislative process, and not rely on the courts to declare new "rights".

Posted by: estherdelia at February 8, 2005 06:19 AM

It all hinges on whether a marriage is a right.

Actually no it doesn't -- that's been well-settled. See Zablocki v. Redhail, 434 U.S. 374 (1978) (marriage is a fundamental right guaranteed by the Fourteenth Amendment Due Process Clause).

The real question, which opponents of gay marriage are terrified to acknowledge openly, is whether mere animus (i.e., naked bigotry) toward gays is a legitimate state interest. Framed that way, you lose. See Romer v. Evans, 517 US 620 (1996).

Posted by: KipEsquire at February 8, 2005 11:21 AM

Because, of course, it's just not possible to oppose gay marriage in good faith. It must be naked bigotry.

Posted by: Sinbad at February 8, 2005 02:08 PM

"Today, like in the time of John Adams, we are facing the "secret enemies," and "internal foes" of a pure democracy, and they are abounding in the debate on gay marriage."

Though I don't think the gay marriage issue should be settled by the courts, this is still a disturbing sentiment - and sadly, all too prevelant on the American right today. America was never meant to be a "pure democracy"; it was meant to be a democratic republic with a strict seperation of powers existing between the three branches of government.

The Founding Fathers understood quite well that a "pure democracy" could easily degenerate into mob rule, which in turn could destroy many of the freedoms that they fought so hard to obtain. That's why the created the Bill of Rights; that's why they made it so hard to ratify a constitutional amendment that would abridge those rights; and that's why they left it to unelected judges to affirm and defend those rights when democratic instituions try to erode them. And time and time again, those judges have done just that.

I'll be the first to admit that there have been instances where judges have judged poorly, and have either created constitutional rights where none exist, or failed to properly defend ones that do exist. But the answer to this problem is to support the nomination by our elected officials of judges who do have a decent understanding of and respect for the rights guaranteed and not guaranteed by the Constitution, not to attack their pivotal role in preventing what Tocqueville called "democratic despotism" from taking hold.

For the record, I don't trust either the religious right or the loony left to throw their weight behind such judges. They interfere too much with their respective agendas.

Posted by: Eric at February 8, 2005 03:39 PM

Judges have and likely will continue to declare new "rights", but that doesn't make them so. Marriage is an institution, not a right. However, I would agree that it is a freedom that the state should regulate based on reason, not bigotry; it should not be narrowed for parochial reasons, such as anti-miscegenation.

However, neither should the state expand the definition without the consent of the governed, via elected legislatures.

Posted by: estherdelia at February 8, 2005 07:41 PM



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