August 23, 2009

A Rebuttal for the (Gay and Lesbian) People

I would like to take a moment and respond to the comment made on last night's post, which I will copy and paste at the end of this post for the sake of clarity.

Dear commentator,

I don't think you read my post quite carefully enough... I am not stating that the Founding Fathers supported gay marriage, but that the principles they endorsed in the Declaration and Bill of Rights do and should include the rights to liberty, the pursuit of happiness and freedom of religion, all three of which are denied to gay couples who are not allowed to marry.

The First Amendment does indeed concern marriage. Marriage has long been held as a religious construct. The ceremonies are usually conducted by a priest or other religious official. Marriage is actually one of the most religious ceremonies held in this country... And freedom of religion, thus, does include freedom of marriage and marriage ceremonies.

And of course the framers did not think about gay marriage. Again, my point is NOT that the framers supported gay marriage (because, at that time, such a belief would be incredibly anachronistic- as you say, they also supported slavery; would you support that, too, if it was the will of the people?) but that the principles they set down in our Constitution DO support and indeed make necessary the legalization of gay marriage.

To continue my rebuttal: Common sense may vary to a certain extent between people but there IS a line that all of us can agree not to cross. How about murder? Torture? (Though I'll grant that for some reason George Bush and Dick Cheney don't seem to agree with me on that one, much to my shame.) Rape? Child abuse? Religious or discriminatory indoctrination (remember Hitler)? All of these things are beyond the "line to cross." Therefore, contrary to your assertion, the line of common sense does exist… and denying two people in love the right to marry is most definitely beyond it.

And as for your point that the people do not will the legalization of gay marriage: First of all, please list specific statistics to confirm your points, if only for the sake of clarity. If you are not correct, than this point has no merit whatsoever. And, assuming that you are correct: Excuse me, but if this is a society governed by the people, shouldn't gay and lesbian couples- who, by the way, count as people, in case you didn't know- have some rights, too? And for your information, “the people” who you champion so highly (and for whom many of the Founding Fathers had a distinct disdain- see Hamilton’s politics) have in the past opposed a lot of things that they should have affirmed- take interracial marriage as an example. Do you believe that that should be illegal, too?

Deigning to give gay and lesbians citizens the same economic advantages as heterosexual citizens would not solve the problem. Please, take a look at twentieth-century U.S. history. "Separate but equal" is discriminatory. We, the people, figured that out a long time ago. By allowing only "civil unions," this country has in no way fulfilled its obligation to the rights of the minority... it has stolen from citizens their “unalienable” rights and ground the principles of the Constitution into the dust.

Incidentally, you forgot to mention (or could not think of a decent response to) one of my arguments: Preventing gay marriage is none of your business if you're not gay. And you, clearly, are not.

Please take time to consider these points; and please, think about what you’re taking away from gay and lesbian citizens the next time you set fingers to keyboard to object to freedoms they should naturally enjoy.
rideabicycle said...


Although I agree that gay marriage needs to happen, I am fairly certain that such a policy is not at all consistent with either the documents upon which this nation was founded or the people who did the founding.

But more to the point, I'd like to take a look at your three arguments:

a) The First Amendment does not concern marriage. People have a tendency to reach for it in justifying whatever they feel the need to justify, and frankly it's a absurd to associate the statute with an institution over which the Federal Government has no jurisdiction. Even at a state level, you'd be hard pressed to convince a judge that the freedoms of speech, assembly, redress, and religion have anything to do with marriage.

b) As to your second point concerning the Preamble, I'm compelled to renew my argument that the framers did not have gay marriage in mind when they penned the Constitution. While this should have no bearing on how we as a nation decide the issue (society does change over time), you can't really invoke Thomas Jefferson here. He wasn't exactly a moral role model, especially concerning marriage; he cheated on his wife with a slave. It doesn't really get any more immoral than that.

c) Common Sense varies between people. The relative location of the "line to cross"`is going to be different for every person on earth, and you have no right to tell them that they're wrong.

I do support the homosexual's right to marriage, but we inhabit what is, ultimately, a society governed by the people. And the people, ultimately, do not wish to permit gays to marry. If we can come up with a way to give them the same economic advantages as marriage, then we have fulfilled our obligations to protect the rights of the minority.
rideabicycle said...
Although I agree that gay marriage needs to happen, I am fairly certain that such a policy is not at all consistent with either the documents upon which this nation was founded or the people who did the founding.

But more to the point, I'd like to take a look at your three arguments:

a) The First Amendment does not concern marriage. People have a tendency to reach for it in justifying whatever they feel the need to justify, and frankly it's a absurd to associate the statute with an institution over which the Federal Government has no jurisdiction. Even at a state level, you'd be hard pressed to convince a judge that the freedoms of speech, assembly, redress, and religion have anything to do with marriage.

b) As to your second point concerning the Preamble, I'm compelled to renew my argument that the framers did not have gay marriage in mind when they penned the Constitution. While this should have no bearing on how we as a nation decide the issue (society does change over time), you can't really invoke Thomas Jefferson here. He wasn't exactly a moral role model, especially concerning marriage; he cheated on his wife with a slave. It doesn't really get any more immoral than that.

c) Common Sense varies between people. The relative location of the "line to cross"`is going to be different for every person on earth, and you have no right to tell them that they're wrong.

I do support the homosexual's right to marriage, but we inhabit what is, ultimately, a society governed by the people. And the people, ultimately, do not wish to permit gays to marry. If we can come up with a way to give them the same economic advantages as marriage, then we have fulfilled our obligations to protect the rights of the minority.

15 comments:

  1. Anonymous11:00 PM

    Just a bit of a question concerning the point you stated the previous posted chose to ignore. I'm going to infer you are not a lesbian for the sake of this post. Then how, according to your own principles, is it your business to post regarding this at all? Should you not, according to your own principles, not hold an opinion to gay marriage if you are not gay? Or is that just a convenient one-way street?

    ReplyDelete
  2. rideabicycle11:50 PM

    Homosexuals are not denied the right to freedom of religious practice. Marriage may occur outside of religion (a Justice of the Peace, a ship's captain, and yes, the President, may all perform the duty), and therefore it may not be considered an inherently religious institution. It is a mechanism for society to create permanent partnerships (although with our marriage failure rate, it certainly does come up short), and from a legal standpoint has nothing to do with worship or god or prayer or faith or theology.

    The principles "set forth" by the framers certainly originate with the framers, and therefore can only be interpreted within the context of the framers' intent. We may change the document, but as it sits we must use it as it was intended. If we go about changing things as we see fit, justifying it however we like and putting words in the framers' mouths, we may as well have no Constitution at all.

    Your argument that there are moral absolutes is inherently flawed. Practices to which we attach the labels of rape and murder are acceptable in other societies. We as a society engage in what could be construed as "murder" in the form of Capital Punishment. There is no overarching line, only what constitutes a line for you.

    A recent CBS/New York Times poll (17 June 2009) indicates that 33% of Americans support granting homosexuals the right to legally marry (see page 4 of http://tinyurl.com/mpxzb7). To legislate against that public mandate is to consider oneself somehow superior in judgment to Americans; you invoked Hamilton as a negative example of such an approach to governance. Homosexuals do have rights, and they don't shy from exercising them either; they seem to share your fondness for the right to freedom of speech and expression. They demonstrate, vote, give money to political candidates, and engage in the same sort of behavior as all other citizens. They drive cars, own land, travel, work, and in general enjoy the same rights as you and me.

    The fact remains that Marriage is not an inalienable right. In fact, I would contend that there are no inalienable rights. We as a society routinely deny individuals life, liberty, and happiness, through the criminal justice system and wartime conscription. Should we not incarcerate criminals? Should we not defend our society?

    Gay marriage is as much my business as it is the right of an individual who earns less than I do to concern himself with my compensation, and levy a tax against me to pay for his health care. I could argue that the Democrat Health Care Reform Bill is unjustifiable, as my money is my business and nobody has a right to endorse a program that would take it from me. However, I accept that the greater will of the people takes precedence over my interests, and will pay my taxes on time and in full should the program be enacted. Any matter of public policy is the concern of all Americans; it will affect our society as a whole, and therefore affects each of us individually.

    ReplyDelete
  3. Anonymous12:18 AM

    What is an example of a practice that we label as rape or murder that is morally acceptable to a different society?

    ReplyDelete
  4. Anonymous1:11 AM

    to anonymous above: just my two cents: in america, marriage is almost by definition a contract into which two parties enter consensually. in many cultures, arranged marriages are as moral as you can get despite the fact that they may be unhappy and forced alliances.

    laura: expanding on rideabicycle's response to your assertion of marriage as a religious rite...

    it's a little strange to me that you say that. marriage (as I'm familiar with it) is first and foremost a civil union. a marriage which takes place in a church holds the same sway with our society as a marriage involving a quick signature on documents at city hall. if marriage was strictly a religious before a legal event, there would be no conflict, because as you say , there is a right to freedom of religion in this country..

    the debate takes place on a legal battlefield. you scorned the idea of homosexual partners having the same economic rights as others without it being called marriage,(your separate but equal argument, which was compelling) but fail to understand that those rights are effectively what a marriage provides in our society.

    beyond that, it's all just semantics. if gays are allowed all the status in society that two heterosexual partners are allotted, why are you so adament that their alliance be called a marriage? does the name matter?

    just to clarify, i fully and passionately support gay marriage, but i'd encourage you, when posting these combative blogs, to structure your arguments a little more convincingly.

    ps. this article might interest you..yes, it's from an atheist blog but that certainly doesn't detract from its merit as a well-structured and effectively researched opinion.

    ReplyDelete
  5. Anonymous1:12 AM

    the article mentioned above : http://atheism.about.com/b/2005/06/12/marriage-religious-rite-or-civil-right.htm

    ReplyDelete
  6. Anonymous2:18 AM

    Rideabicycle is right about marriage being a civil contract. But his post brings up another question: if no rights are alienable, then under what circumstances may government remove these rights? The examples offered were criminal justice and wartime conscription, which are true enough, but do not apply to the point at hand.

    If you are a Federalist (and I believe a lot of people are), then you believe that government has no power beyond what is enumerated, and whatever power not enumerated is reserved as a right of the people. For government to remove, withhold, or otherwise subvert a right, it must justify its rationale, especially if it does so categorically to a class of people.

    What are gays? In the objective eyes of the law, what sets them apart from any other U.S. citizen? Are they a suspect class? And if so, which which level of scrutiny should the courts look at their situation? The distinction between marriages and civil unions certainly would not survive if the courts were to apply strict scrutiny, as the SCOTUS did for miscegenous marriages in Loving v. Virginia (1967). Let us remember that Loving was by no means a popular decision--yet in the eyes of the Constitution, which offers equal protection and due process for all citizens under the 14th Amendment, it was the right one.

    A democratic society is characterized by the ability of the majority to get their way. Yet the United States is no mere democracy; it is a constitutional democratic republic. A Constitution is indeed the greatest protection of the minority.

    And so the only question is: are homosexual citizens legally distinguishable from heterosexual ones? And can anyone justify this distinction on a Constitutional basis? If not, then it's clear how the courts, and the country, must lean on this issue.

    ReplyDelete
  7. I'll add a few points

    1. rideabicycle says that gays are not denied religious rights. However, unlike their straight counterparts, homosexuals seeking common-law marriages or civil unions often have to undergo periods of residential cohabitation. I know that in many religious households, living together before marriage would be unthinkable, but for gays, it is required. Something to think about. Certainly separate is not equal here.

    2. I agree that moral absolutes are not enforceable here, nor are they terribly productive to this conversation. Suffice it to say, however, that most Americans believe that discrimination is wrong and in light of this, the opposition to gay marriage freedoms is puzzling.

    3. Anonymous 2:18AM asks "what are gays"? I'd say that they are a "discrete and insular minority" worthy of strict scrutiny discrimination protections. They are (1) discrete in they they have their own segregated community (gay bars, gay neighborhoods, gay book stores), (2) possess an immutable trait (homosexuality), (3) share a lengthy history of discrimination so violent and repressive that their very existence was snuffed out of history until recent times, and (4) are powerless to protect themselves through the political process due to the their extreme minority status (only 15% of total population in their highest city concentration, San Francisco) and the prejudice of their fellow citizens. Under strict scrutiny standards, it is impossible to uphold gay marriage bans.

    4. Rights issues are rarely left up to popular sovereignty and instead require the intervention of the judiciary, the historical safeguard of rights, to gain protections. But even if we push that point aside, the restriction of individual freedom for the preferences of the many requires a compelling societal interest. What is the interest here? Without a compelling one, the popular opinion argument is D.O.A.

    5. This is a semantic point, but if we are using American historical parlance, a "federalist" would be someone supporting the powers of the federal government over the states, usually beyond the (very constraining) specifically enumerated powers of the U.S. Constitution. Anonymous 2:18AM should use the term "anti-federalist" in P2.

    ReplyDelete
  8. rideabicycle10:07 PM

    @ anon 2:18:

    Federalism is a multi-tiered structure of government. American Constitutional Federalism can be succinctly described as a system whereby enumerated powers are granted to the National (Federal) Government, certain powers/rights are restricted from all government control, and the rest are Reserved to State governments. Municipal and local governments follow, depending on how each state has decided to divide its Reserved powers. Ultimately, this matter is not for the people to decide, but for the states to decide.

    ReplyDelete
  9. As I can see, you have all taken various political and social standpoints on this subject, but I thought I'd bring a new perspective to this conversation.

    I have an older sister who has been there for me since I was a baby. She and my mother did everything they could to raise me and make sure I was happy. As I got older, I learned that my sister is bisexual. As of today, she has been with her partner who is also female for 5 years, and she is the happiest that I've seen her. While this may be true, she's also wanted one thing for the longest time- to get married to someone she truly loves.

    As a Californian, I know there are many people who oppose gay marriage, and I know there are those who support it. To me, marriage is a union between people who LOVE one another. It pains me to know end to know that my sister, who is an amazing daughter and mother as well, will not be able to find happiness in marriage. And why is this? Because some people see it wrong for her to marry another woman. Did Americans not view interracial marriages completely wrong at one point? How is gay marriage any different between a marriage between people who are, say, both under 5 feet tall? How can someone be rightfully penalized for something they cannot control, for how they were born?

    Of course a Civil Union might give most of the same benefits as a marriage, but do you all really think everyone will view it the same? What about the man who loves Jesus with all of his heart but just happens to love men as well? Would Jesus, our creator not want his creation to be happy unconditionally? Maybe we as humans simply label things for the sake of labeling them rather than taking the time to look deeply into a situation and recognize the true feelings and emotions present.

    All I know is that I would love for my sister to be happy and to experience the same unity as anyone else, and for her to be denied that ability is wrong.

    ReplyDelete
  10. This comment has been removed by a blog administrator.

    ReplyDelete
  11. Anonymous2:45 AM

    @Nathan

    Nope. I meant Federalist. During the time of the Constitutional Convention, the Federalists were against the inclusion of a Bill of Rights. Their chief argument was that a Bill of Rights was unnecessary since government had no presumed power to violate the rights it listed (free speech, religion, etc.), and that the mere existence of the Bill of Rights implies that government had more power than the Constitution enumerated.

    A good way to remember this is to think of the Federalist Society, composed of conservative political thinkers that believe in small government.

    Otherwise, I agree wholeheartedly. I believe the biggest struggle in gaining strict scrutiny protection for homosexuals (at least from a legal perspective) would be to convince the courts that homosexuality is indeed an immutable trait.

    ReplyDelete
  12. Anonymous2:51 AM

    And to clarify, I meant "Federalist" in the earliest sense of the word. Not the Hamiltonian "I-do-what-I-want-with-the-Constitution" sense.

    ReplyDelete
  13. Rideabicycle provides a more cogent argument than most people who are not supportive of same-sex marriage.

    a) The first amendment is overused for any type of civil rights related issues, granted. Obviously the first amendment does not specifically reference marriage. it does not site anything specifically. That is the point. The court system irons out the details, the first amendment is just a global guideline and protection.

    b) Yes he can invoke Thomas Jefferson. You cannot disqualify him for ad hominem. So he was a hypocrite, he was not perfect, and he did not always follow the line he towed. None of us do. In the context of his peers he at least supported innovative ideas. Furthermore it is historically documented that Jefferson cheated on his wife. He had a "traditional marriage" and violated that contract. If same-sex marriage is a threat to marriage due to its corruption, then we should base that on empirical evidence. What about divorce and remarriage rates for heterosexual couples? How does that compare to same-sex couples where they are allowed to marry?

    c) I have to quote you here:

    I do support the homosexual's right to marriage, but we inhabit what is, ultimately, a society governed by the people. And the people, ultimately, do not wish to permit gays to marry. If we can come up with a way to give them the same economic advantages as marriage, then we have fulfilled our obligations to protect the rights of the minority.

    I am going to be a little rude, but WTF!?! Are you Glen Beck? Who are "the people"? How can you make that statement with any confidence? Do you have like 4,539 friends on Facebook, and they are all like "Gay marriage is just so gay"? Maybe a group! Are you talking about church lobbies? Certainly some people want same-sex marriage or else we would not be discussing such.

    You know back in the 1850's most people did not like the idea of free black people, then these "minority interests" came in and ruined everything for everybody. You know what, you are right though. As long as there is not consistent organized support, gay marriage will not happen.

    And what is that whole thing about fulfilling our obligations by giving them the same economic advantages as marriage? Listen Marriage is a contract recorded by the government, hence it is a civil contract. If any specific church does not want its gay members to marry, then they should settle that internally. I'm sure you'll agree with the separation of the church and state that they have no place dictating public policy for people who have no affiliation with them.

    ReplyDelete
  14. Anonymous12:49 AM

    I just want to add my two cents here:

    I think that rideabicycle adheres to an originalist view of the law, interpreting the Constitution solely in the context of the founders' intent. I would argue that in a sense, we HAVE already changed the Constitution in the form of amendments. I would argue that the founders envisioned change when they created the process of creating constitutional amendments.

    I guess that in a larger and broader sense, governing a country solely based on the mores and values of 18th century plantation/slave owners as penned in the Constitution doesn't appeal to me intellectually, but that may just be me...

    I disagree with rideabicycle's concept of moral relativism. Again, I may be intellectually deficient, but off the top of my head, I can think of no modern society that condones rape or murder. We must not confuse a society's moral views of rape or murder with state sponsored acts of rape or murder.

    Finally, I would argue that in light of my supportive views of the existence of moral absolutes, a majority opinion of the people is not necessarily a "morally correct" course of action. Nazi Germany comes to mind. For a time in this country, slavery too was widely condoned, both by society and government. To me, slavery is always wrong, sanctioned or not...though others may view this issue differently.

    Finally, I honestly think that conservative energy opposed to gay marriage (i.e. straight people outraged by other people's marriages) would be better spent tackling the outrage of high marriage failure rates in this country (which more often than not splinter families), the outrage of teen pregnancy (which forces parenthood onto unprepared, often single, adults) and the outrage of poverty (which is rampant around the world). Social conservatives tackling such issues would, in my view, bear more fruit. Rather than lobbying for the DOMA endlessly, social conservatives COULD pour their energies into interfering with other peoples lives positively, rather than negatively...

    However, this may be too much to ask...

    ReplyDelete
  15. rideabicycle2:33 AM

    @ AMM:

    a) I don't dispute this point.

    b) I don't argue that same sex marriage threatens traditional marriage, and as a matter of note, I personally have no personal issues with homosexual marriage.

    c) Since you began your point by quoting me, I'll quote myself as well:
    "A recent CBS/New York Times poll (17 June 2009) indicates that 33% of Americans support granting homosexuals the right to legally marry (see page 4 of http://tinyurl.com/mpxzb7). To legislate against that public mandate is to consider oneself somehow superior in judgment to Americans; you invoked Hamilton as a negative example of such an approach to governance." (rideabicycle @ 10:55 pm)

    I do not make baseless claims: Americans overwhelmingly do not support gay marriage.

    Furthermore, I have never argued that marriage is a religious institution; in fact, my argument has been based on the contention that it is a civil one. It is because of this that we must observe the wishes of our society.

    @ anon 12:49 am:

    Since the Founders included the amendment process in the constitution, it is obvious that they intended the document to change with the times. However, until we enact an actual amendment, we must observe the letter of the law as it stands. We cannot interpret the basis of our society based on whim of fancy; the very reason that the amendment process is so arduous is to ensure that the proposed change is a good idea.

    We don't need to govern as our forefathers would, but we must still live within the legal framework of our government. Remember, we're free to change it, but until we do, we have to respect the documents that hold us together.

    Nazi Germany is a poor example per the very nature of Nazi Germany. There is no cult of personality spewing some new agenda or viewpoint; opposition to homosexual marriage has existed for far longer than the United States has. Nobody pushed this on us, or indoctrinated us; the very nature of a Conservative movement is that it advocates cautious reform.

    ReplyDelete