Marriage - a Fundamental Liberty?
Matrimonial Madness , Politics - California
Hatched by Dafydd
In short, no, it isn’t… and I don’t care what the Supreme Court (U.S. or California) says: Any claim that marriage is a fundamental right or liberty contradicts itself. For the most obvious examples, if it were a fundamental right, then how could it be illegal for a brother to wed his sister? Shouldn’t “strict scrutiny” apply to laws against consanguineous marriage, polygamy, polyandry, and even marriage with minors? After all, even kids have freedom of speech under some circumstances. Yet no court has ever even hinted at any such ruling. Any court that has ruled marriage a fundamental liberty is confused, contradictory, biased, bewitched, bothered, and bewildered…

http://biglizards.net/blog/archives/2008/10/marriage_a_fund.html#comments

If you accept that premise, then the courts rightfully intervened, rather than usurped.

I was simply accepting eche’s premise at face value and pointing out that

If you keep doing that, Don, you soon won’t have anything to disagree about except on superficial details.

Down goes individual free will and up goes sheep and elf syndromes. Thus the Cycle of Eons repeat once more, Danny.

Thanks for your comment. I don’t have any idea what the state of the scientific art is in this area, and it makes no difference to my own position on gay marriage. I was simply accepting eche’s premise at face value and pointing out that, even if he is correct, the Court acted outside of its proper role.

Thus, although it is popular today to claim a biological origin to homosexuality and ergo to start with that premise in structuring one’s support for or opposition to gay marriage, such premise is not supported by scientific fact. And, unfortunately, the issue has become so hyper-politicized that it is highly unlikely that any such objective research into this issue will ever to be funded. I think that we would all agree that it is one of several central issues to the debate over gay marriage.

Unfortunately, I fear that PC-mores will never allow a full airing of this issue.

But let’s say three unrelated people who are in their 70s want to get married. They want all the legal protections of a family (inheritance rights, etc.) and they have no intention of having children. Just three nice retired people who love each other and want to be legally recognized as a family.

Once we have accepted the interpretation that laws limiting marriage to one man and one woman are either discriminatory or unsupportable on the basis of state interest, what is the justification for not allowing three people to get married?

I’m sure you get my drift, but it’s an honest question and not mere rhetoric. I want to hear how the state might justify saying no to these three people once they have gone ahead and allowed same sex marriages (once they have altered the traditional/limited definition of marriage). What would be the legal rationale for keeping this (two persons only) limitation?

“You state in your first post that the right way to do it is to win the support of the majority and then get a court ruling. But this is problematic for a couple of reasons. First, it did not occur that way historically. Brown v. Board was decided in 1954…”

I still think that across most of the country, there was more support for that decision than against it. There’s a reason why ‘Plessy vs Ferguson’ succeeded, led to separate but equal apartheid, and remained in effect for more than fifty years. The reason is “the reality on the ground”, and our system ensures that Supreme Court decisions don’t occur in a vacuum. The country has to be MOSTLY changed first, before any such decision can have the desired effect.

I just think that that is the political reality of how things actually work. Wishing it were different doesn’t make it different. Abolitionists were firmly convinced slavery was an evil even before the Constitution set in writing the worth of a black person as 3/5 of a white person, even for the purposes of determining the numerical makeup of the House of Representatives. The rightness of the abolitionist cause - clear to them then, clear to *everyone* now - scarcely made a difference in its time. The groundwork must be laid, and the hard work must occur.

There was a LOT of groundwork done between Plessy vs Ferguson in 1896 and Brown vs Board of Ed in 1954. A lot of effort and a lot of changing of minds. Only the South erupted into violent controversy after the 1954 ruling, and the civil rights effort in the fifteen years that followed was also centered in the South. That is what I meant when I said that a Supreme Court decision can shove its will onto only one relatively small section of the country, and succeed. It cannot succeed if it must do that within every state across the entire country. That simply will not happen.

And I stand by that.

The current situation on the issue of Gay Marriage is that there is not enough support in any state in the entire country to allow it to happen. (Well, I might give you two states. Maybe.) Because of that, the reality on the ground makes it inevitable that Gay Marriage will NOT happen.

Second, you state:
“But there is a bigger problem with the condition of majority assent you place in your first post: to require that would be to render EPC meaningless. Indeed, EPC is designed to protect a suspect minority class from the will of the majority when it is discriminatory (i.e., tyranny of the majority).”

Well, that is exactly my point, I think. The majority does rule, and it is a tyranny, EXCEPT where there is enough political will to determine that a decision of theirs is discriminatory. My whole point revolves around how something is found to be discriminatory. In rare cases you can get a majority of the Court to make such a decision with only a small amount of support among the people. And if the opposition is much larger than the support, that decision will eventually be set aside, and often very quickly. Such decisions cause political earthquakes of huge magnitude, and the momentum behind the eventual rollback of the decision sets that cause back decades.

That’s just the political reality, the truth of the reality on the ground. The sooner activists realize that you cannot subvert the will of people, that you have to change many, many minds FIRST, the better off we all will be.

I still stand by the idea that an “EPC right cannot be discovered” until you do all the hard work to make a large number of people discover its validity first. And you haven’t done that with gay marriage, and that is why it deserves to fail. And it will fail even if judicial tyranny temporarily gets you some kind of ephemeral victory; you wouldn’t like the resulting backlash at all.

The US system is a historic achievement because it uses the fact that people naturally have ulterior motives when they are supposed to be working as one team, to create more chances for unity. The US Civil War was born upon the winds of irreconcilable differences, yet it also brought about a true unity of America into one nation rather than 50 states inside a confederacy. While none of this was inevitable, it does speak of a system that uses the fact that people will naturally try to stab each other in the back, for a common good, so long as certain precautions or preconditions have been prepared.

What would unbalance this kind of system isn’t treason, for Benedict Arnold and McClellan certainly tried to no great success. What unbalances the American system of life and government is one side refusing to react in a way normal humans would while the other side reacts entirely consistent with the savage and treacherous nation of humanity. In a sense, a system that expects treason from all factions breaks down when only one faction is being treasonous while the other tolerates this treason and tries to work with those folks like buddies.

The deterrence now breaks down, for why should anyone now fear to act when their actions are without cost but with a lot of potential rewards?

The greatest danger to democracy, thus, is when the tools designed to prevent total dissolution of the system is placed into the hands of those that have the most motivation in destroying the system. Freedom of the press to publish and be read by any citizen that so wishes, is now in the hands of totalitarian propagandists, either of the pro-totalitarian faction or simply purposefully blind to the realities of their actions. The Supreme Court, once used as a road block to the immense power of the Executive in league with the Legislative, now stands a pawn to foreign law and international values on human rights, or rather the international non-existent valuing of human rights.

The process, while not complete and not inevitable, is still further along than at any other point in history. And it is in actual fact more damaging now, when people have more trust in their neighbors and fellows than it was back in Lincoln’s time, when suspicions and prejudices abounded along with violence amongst neighbors.

The difference is simple. The higher a nation is on a civilization scale, the farther it has to fall. The farther it has to fall, the more time gravity has to make it slam into the ground harder.

People might make the argument that in Sherman and Lee’s times, the newspapers were hardly any better than in today’s world. People might also argue that the times back then were full of evil acts and desperate actions like slavery or Sedition Acts or executions of spies and traitors. And so we get to the difference to today. In today’s world, we have just as many, if not more, problems and enemies as America’s ancestors did, yet we do not apply the solutions to such behavior.

This is because while one faction in the struggle behaves like normal humans, meaning traitorous, selfish, not trusting in strangers and ideological/religious/political opponents, the other faction behaves in a manner more befitting the products of a truly enlightened society and nation: meaning no amoral familism or tribalism or factionalism.

This is why democracies will fall further the more successful they become. For more and more of the population now forgets the Hard Times and what human beings are capable of, in this free, trusting, peaceful, and secure environment called the United States. This allows snake oil salesmen to make a killing. This allows terrorists to make a killing. This allows pirates to flourish.

The ancestors of America can rightfully say that they did not have the power to end slavery, piracy, evil, prejudices, or what not in their day given the resources and time they had. Yet they tried their best, even when they were sure of their limitations. Can the America of today rightfully say that they lack the resources and power to end Somalian piracy and alleviate evil in much of the world? America doesn’t lack the resources now a days so much as the will and interest. Folks are more happy locking blacks up again as slaves under the Democrats than they are interested in freeing more human beings from tyranny, oppression, and slavery.

This is why history starts and ends in cycles and why human beings are ultimately flawed. Human beings will always either lack the power to accomplish any real lasting good or they will simply lack the interest and will to do so had they the power. Breaking Heisenberg’s Uncertainty Principle so that one could both have the power to affect things and the knowledge of what one needs to affect, is not within the mortal realm of capability.