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I keep thinking about this, then keep forgetting to post it.
Almost all of the arguments presented for allowing gay marriage, and against bans on same, focus on it from the angle of discrimination and equal protection under the law. The next thing that happens is you have a bunch of people mincing weasel-words and arguing that it isn't really discrimination, etc, etc, etc, ad nauseam.
It seems to me this argument misses a key point. Barring those who just want to argue about the terminology, the people seriously objecting to allowing gay couples to marry, virtually without exception, do so on religious grounds, and more to the point, specifically on capital-C Christian religious grounds. They say it's an abomination in the sight of their god, or some such verbiage.
So, if the law allows a religion to define what marriage is, and the religious definition of marriage allows hetero couples to marry, because that's what the religion in question says they should do, but bars gay couples from marrying because the religion says that's wrong, then the law is being subjugated to that specific religion. Any legal ban on gay marriage dictated by some religion's principles thus becomes a law respecting an establishment of that religion. Bam, direct Establishment Clause violation, clearly unconstitutional, game over. Open-and-shut case.
... Or am I missing something?
Yes, I know that technically the First Amendment constrains only Congress from passing a law "respecting an extablishment of religion, or prohibiting the free expression thereof". And many States feel they don't have to be bound by the Constitution when they don't feel like it — like California, for example, which "does not consider the Second Amendment to be incorporated into the California State Constitution." I have never had the slightest respect for this argument. It amounts to saying, "Yes, we agreed to abide by the Constitution when we joined the Union, but we had our fingers crossed." You want to be a US state? You obey and respect the Constitution. ALL of it. Period. You want to pick and choose which parts of it apply to you? Maybe you think your state should allow slavery, or deny women the vote? Go the hell away and form your own nation.
no subject
Basically, proponents of gay marriage need to stop trying to find a short cut and actually get a legislature or an electorate to vote for this. They likely will someday, but things like this and the 'revision vs. amendment' thing are just distracting from doing it properly. Yes, the process is important.
Like it or not, the Prop 8 guys actually did it right: spend the ground time getting all the needed signatures, get your prop on the ballot and then run a good campaign to get people to support your view.
There's been a push on the left since the 50's to not bother with the democratic process and to take things through the courts. Sometimes this has ended OK, but oft times is just makes the entire thing worse (for instance, abortion). If you can't even get a majority in the most permissive State in the Union and easily the most liberal President(-elect) we've had in the last 40 years is against you, you haven't done near enough of the hard legwork yet.
That was tried in California
The California legislature passed it _twice_...and the Governator vetoed it both times, saying that it was something the courts had to decide.
The CA Supreme Court then did so....and here we are.
Re: That was tried in California
Schwarteneger's vetos were in light of the fact that there was a pending court case over the last time the people of CA said that they don't want gay marriage and the court cases stemming from it.
His position was that since there was already a proposition that was winding its way through the courts, this should be resolved before the legislature stepped in or the people should override themselves with another vote (which gets us back to to prop 8).
To pretend that it was just randomly vetoed is either ignorant or dishonest about the history of this whole thing in California.
Which is the point. The process is important..."whether you like it or not.", to quote a famous philosopher.
Re: That was tried in California
Still -- the attempt WAS made (twice) in the CA Legislature, so it was not entirely a court-based strategy.
To pretend that there was not an attempt to use the legislative process is not entirely correct...or honest.
Re: That was tried in California
There is ample precedent in CA law for an action of the Legislature to render a pending court case moot. Therefore, the vetos did directly lead to this situation.
Re: That was tried in California
The only reason the legislature would have been allowed to pass a bill around this is that there was a stay preventing prop 22 from becoming law while it was in court, so technically, if they hurried, they would not be repealing an initiative.
Under CA law, if the legislature attempts to repeal an initiative, that bill doesn't become law until it is voted on by the people again (who'd just passed prop 22 with 61% of the vote).
This is what Schwarzenegger was referring to when he vetoed the bill.
So far, the only people that have consistently tried to go through the democratic process in California are the anti-(gay marriage) people. This is a bitter pill to swallow, I know, but there it is.
And now we're still at the point where having been passed again by a majority of voters, we're trying to overturn it again via a minor technicality.
In short, it lost. Suck it up and try again next time...and the time after that. Eventually it will either pass or people will be so sick of it that no one will sign the petitions anymore and it'll stop getting on the ballot
(I'd bet on the former around 2014ish...these things are way easier to get through in on off-cycle election).
Re: That was tried in California
I had been lead to believe that the legislative attempts were indeed working thorugh the system.
Apparently, this information information was bad, or incomplete.
[Note: Information sources I'd used included the mainstream media, the No on 8 groups, and the Yes on 8 groups.]
So in answer to the accusation in your first reply - I must claim "ignorance" in the form of insufficient data, but certainly deny deliberate dishonesty.
Re: That was tried in California
Let’s just agree to blame Phil for it all, since he’s the one that started it.