US Politics: Scott Lucas with BBC on California Same-Sex Marriage

I spent a few minutes on the BBC World Service this morning discussing the Federal court decision overturning a ban, mandated in a referendum in 2008, on same-sex marriage in California.

(Ahh, the perils of four minutes of "fame" and the BBC's lack of an archive: the programme has now been superseded by today's broadcast.)

Comments

[Kurt]

Yes, the Massachusetts ruling was a curious (one might say opportunist) decision, and I'm much more comfortable arguing this on 14th, rather than challenging DOMA on 10th Amendment grounds. The 14th Amendment gets to the core of what this is really about. (and is also interesting tangentially considering the bewildering recent movement to scrap the 14th Amendment in connection to the Immigration debate)

I'm for the suggestion proposed by some commentators in the US media. Let's just cut to the chase and ask Justice Kennedy how he's gonna rule now. But I kid, this is a serious Constitutional issue, and I hope the SCOTUS decision is founded on a firm legal footing to solve this federally.

When mentioning upcoming midterms, you might have added that while a legal victory (in the short-term, at least), this will also add fire to the base of the right, especially after the injunction against the key provisions of Arizona's SB 1070. Social wedge-issues are back in full force. As is the recurring conservative base issue of judicial activism, which Justice Kennedy has quipped is, "a decision you don't like."

[Dave]

Here's an interesting angle on the issue...

http://www.thepublicdiscourse.com/2009/06/259" rel="nofollow">http://www.thepublicdiscourse.com/2009/06/259 (article)

Excerpt -- The fact that marriage is pre-political (in the sense that it predates the institution of any secular state) does not mean there are no reasons for the traditional institution of marriage, or that these reasons are not universal and publicly arguable. But, since traditional marriage already has reasons of its own, the state should not therefore supply new and different reasons for an institution it only inherited rather than created itself. Indeed, to supply radically new reasons for something old is to radically transform it by radically redefining it. The most the state can honestly do to an institution that predates its founding (and in many ways transcends its operation) is to refine and reformulate the original reasons why this institution has deserved and still deserves social recognition and support.

......since this society is so divided on this question, the disestablishment of civil marriage altogether and its total replacement by civil unions could well be the way this society might have to go for the sake of civil peace.

[Kurt]

Well, except for comparing homosexuals to handicapped students in school and the same old absurd line of argument that Anti-Miscegenationists used to equate interracial marriages with the slippery slope to bestiality (rebutted by de minimis non curat lex, no?), I'll leave aside a point by point rebuttal to all the questionable reasoning in that and agree with its conclusion.

If people (mostly over 35) have such emotional ties to a word such as 'marriage' then fine. Every one gets civil unions, with ALL the rights afforded to civil marriages now. No separate but equal business. To be quite honest, the whole business of recognizing religious marriage poses 1st Amendment issues. Why is a Catholic heterosexual marriage worth more than a Unitarian homosexual marriage in the eyes of the state, for example? However; the polygamy argument is absurd and especially laughable, considering the history of who funded all these anti-gay propositions in the first place.

I appreciate all the arguments which try to frame this apart from religion - particularly of the religious right persuasion; but it's the equivalent of Intelligent Design for the same-sex marriage debate. It's a thin smoke-screen.

[Catherine]

Take-away bit of Juan Cole's post on the issue:

What is at stake in both gay marriage and Muslim mosque building from the point of view of those who believe in the American tradition of civil liberties for individuals, is the default position that the government has no business regulating unharmful individual activity. It is nothing less than the assertion of inalienable rights over the whims and emotions of a very large mob.

[Catherine]

Interesting comment under Cole's blog entry:

The problem lies in the confusion in the public mind of civil marriage (a legal contract) with marriage as a religious ritual/sacrament. There’s nothing inherently sacramental about a civil marriage; all that matters is that it be legally valid.

In most countries around the world, civil marriage is the only one that counts in the eyes of the law. After a couple has entered into a civil marriage before a government official (such as a town clerk or justice of the peace), a couple who wishes to do so can then go on to have a religious marriage ceremony performed by a minister, priest, rabbi or imam. However, the religious ceremony carries no legal force and can only be performed after the couple has already been legally married in a civil ceremony.

I believe the time has come to separate the two here in the US as well. There’s no compelling reason why the state should delegate its authority to perform marriages under the law to members of the clergy (or to “ministers ordained for the occasion”).

Religious denominations are free to impose their own norms on their own members. As such, they’re free to impose preconditions for performing a religious marriage (for example: many denominations discourage or bar intermarriage; Roman Catholics don’t recognize divorce; some denominations will not perform religious marriage ceremonies for same-sex couples, others have no problem doing so). these religious considerations are relevant to their own followers, but they have nothing to do with the state and its laws.

Civil marriage is a legal matter, and should not be governed by religious rules. Equal access to and equal protection of the law means that civil marriage, which confers a change in civil status, should be accessible to all consenting adult couples who qualify under state law, without regard to the couple’s religious denomination, gender or race.

By András
August 5, 2010 at 4:18 pm
http://www.juancole.com/2010/08/mosque-building-and-gay-marriage-vs-mob-rule-by-the-right.html" rel="nofollow">http://www.juancole.com/2010/08/mosque-building...

[Dissected News]

Did you mention that at least 75% of marriages are gay, anyway?
http://www.huffingtonpost.com/andy-borowitz/70-of-existing-marriages_b_671575.html" rel="nofollow">http://www.huffingtonpost.com/andy-borowitz/70-...