Just sayin'
On June 12, 1967, the U.S. Supreme Court handed down its decision on the case of Loving v. Virginia. In Loving, the High Court unanimously ruled that anti-miscegenation marriage laws were unconstitutional. In his opinion, Chief Justice Earl Warren wrote, "Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."
A convenient reminder from the Fourteenth Amendment:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
I'm sure that in the eyes of many of the citizens of many of the fourteen states that had standing laws restricting the right to marry at the time Loving came down, the ruling that overturned those laws did not represent majority rule or opinion. It was, nevertheless, the correct ruling, rooted firmly in the Constitution in both spirit and letter, and in accord with basic ethics. The "mixed-race" couples in question were not asking to be granted any "special rights," nor was the Court granting any. It was merely acknowledging and guaranteeing their existing rights as citizens under the Constitution.
So how, Constitutionally or ethically, is same-sex marriage different?
It's not.
The motivation behind every press to restrictively define marriage, in a Constitutional amendment or anywhere else, stems from an awareness that there is no Constitutional basis for denying any two people the right to marry. What basis proponents of restrictive marriage have for their view is not a legal one, nor is it objective or rational. They'll say that their basis is moral; it is not, however, ethical.
I'm just sayin'.
posted by Greg! | 2:29 PM
3 Comments:
Greg- I fully support gay marriage, but I also support a good argument.
You ask "So how, Constitutionally or ethically, is same-sex marriage different?" and answer "it is not"
You also quote Warren- "Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival."
And there is the difference...an interracial marriage can produce offspring and thus contributes to our existence and survival. A same-sex marriage does not contribute to our survival.
I now realize that as a society and a species we no longer need marriage for the purpose of procreation-and so maybe marriage is no longer a basic civil right.
I do whole heartedly agree with your graph. A gay marriage in NO WAY diminishes mine. If gay marriage were legal in PA tomorrow it ain't gonna make me gay.
Andy, if pigs flew from Philly to Pittsburgh tomorrow it wouldn't make you gay.
I stumbled upon that Warren quote from the Loving v. Virginia opinion and found it powerful enough that I felt like riffing on it in relation to today's marriage equality question. I figured that for someone reading my blog I was preaching to the choir, so it's not an encompassing argument. You bring up a good point.
Yes, the definition of marriage is at the core of this argument. Of course it is. Are there differences between a "conventional" marriage and a same-sex marriage? Of course there are. Are there differences between a conventional marriage and a mixed-race marriage? Less so now than forty years ago, I hope, but I think there still are, if only in terms of societal issues. And there are differences between a conventional marriage and a late-life marriage in which there is no potential for the biological production of offspring from the couple.
The same reasoning that reduces to the assertion that the production of offspring (or at least the potential for it) validates a marriage was used by the Roman Catholic Church in refusing the sacrament of marriage to barren couples well into this century. Its argument is that the purpose (sole or, at least, primary) of marriage is to produce children.
Is it?
If we're going to make the biological production of children a contingent element in the definition of marriage, we're subscribing to a reasoning which would equally support denying marriage to any couple incapable of such procreation. Ought we also, based on the same reasoning, deny marriage to couples who are capable but choose not to have children?
What do we do with biologically barren couples who are willing and eager to adopt children? Do they get to marry? Are their marriages fundamentally different from those with biological offspring?
If a marriage between a man and woman who are incapable of producing a child biologically but who adopt a child is a marriage that shares in all the rights and protections as that of a couple who produce their child biologically, then, in terms of the child-validates-marriage argument, I'd ask why a same-sex couple who adopt a child should be denied the right to the same marriage as a mixed-sex couple who adopt a child.
Yes, a same-sex marriage differs in biological specifics from most conventional mixed-sex marriages. In a gay couple, neither man can personally give birth. In a lesbian couple, neither woman can fertilize an egg, although either has the potential to carry a pregnancy and give birth. (I know at least one couple where this is the case; I don't know them well enough to ask how they decided who got to do they heavy lifting, much less where they got the sperm.) But if either sort of couple adopts a child... well, how does that differ from a conventional couple who adopt a child?
Primarily in the fact that both parents are the same sex.
That's why those pressing to restrictively define marriage go specifically to the one-man-one-woman definition. If you can establish that as your base definition, then you have a definition that's pretty much impervious to reasoning.
One other thought: Was Warren referring exclusively to the production of offspring when he called marriage "fundamental to our very existence and survival?" Procreation can occur without marriage, after all. I'm inclined to credit Warren with a regard for society that encompassed more than a mere biological imperative.
The problem, to me, is The Church.
Can two people legally marry outside of The Church? Absolutely.
http://www.buddybuddy.com/mar-vs.html
"Opposite-sex couples may combine both the legal and ceremonial events, but they are entirely distinct under our nation’s constitutional separation of church and state."
So. Take The Church out of it. Completely. No Bible, no Torah, no Qu'ran.
Legally speaking, two people should be allowed to marry. It's clearly the undue influence of The Church that prevents this.
That, and fear of catching 'the gay' or some moral superiority that I can't fathom - why can first cousins marry, legally, in many states? That's not weird, but two guys is? Please.
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