In their editorial on the Supreme Court’s decision in Obergefell v. Hodges after lengthy throat-clearing they finally arrive at my view:
Justice Kennedy writes that expanding the definition of marriage to include gay couples would “pose no risk of harm to themselves or third parties.” We hope he’s right in practice, and that if he’s wrong he’ll protect the liberty rights of those who disagree with him.
Update
Sasha Volokh has what I think is a good post which makes the observation I made when the Massachusetts case that got this whole snowball rolling was decided:
An equal protection holding based on fundamental interests means that if marriage exists, there can’t be unreasonable discrimination, but you could still abolish marriage altogether — which seems correct to me.
The point is that good law and good policy point in the same direction here. If there is a liberty interest in marriage, the key to the Court’s arguments, then the better policy decision is to require that the states abolish civil marriage.
What harm is done to opponents of gay marriage other than losing the right to tell people they can’t get married?
I predict that in laws schools all over the country, professors will complain about how poorly the decision was reasoned and written, while agreeing with the outcome. Just like Roe v. Wade.
The opposition based upon churches being forced to marry gay couples would not apply to the Catholic Church. The Church should not be involved in the civil legal contract at all. Marriage is one of the sacraments, and what the government wants to do cannot change that.
In the end, it will have been much ado about nothing. Gay couples will get to file joint tax returns, and the Earth will not slip out of its orbit. It would be fun to see some of the Republicans hold their breath until they turn blue and pass out.
I think Sasha’s point is that Kennedy wrote a half-assed due process rationale and a half-assed equal protection rationale, called it a donkey and went home.
I still have heard an explanation of why the number two is magical.
It takes two points to draw a line in the sand.
Just to speculate on a reason why Kennedy didn’t write a full-fledged equal protection decision — he doesn’t believe homosexuals are a suspect class akin to race. Homosexuals are classified by private behavior, not a highly visible trait like skin color, or even gender characteristics. Homosexuals also tend to be more highly educated and earn more. If the case for suspect class isn’t as iron-clad as supporters assume, perhaps Kennedy simply doesn’t want to give homosexuals equal protection for anything other than the relatively conservative issue of marriage. In this way, religious traditions are maintained and not subject to claims of discrimination.
I agree with that.
which is my hope as well. What I think is a reasonable worry is that there are radicals on both sides of the question who won’t be satisfied there.
The issue, as I see it, is that marriage is a trinity – it’s a secular, social and religious institution. Religious people focus primarily on the religious aspect and contend that marriage isn’t simply a legal union conferring certain benefits and a social status – it’s also spiritual union that is (depending on the religion) directly sanctioned by God, a union that will continue in the afterlife. Advocates for marriage equality focus their arguments on the secular and social aspects, so a lot of this debate ends up with people talking past each other.
IMO the only solution is to disentangle religious and legal marriage. This was sort of tried with the “civil union” concept, but that was insufficient for the marriage equality camp because civil unions don’t come with the same social status as marriage.
Given how intertwined the notions of secular and religious marriage are historically, I think the effect of this decision will, over time, disentangle them. What that will probably mean is that in the future most Pastors/priests/ministers/etc. will slowly out of the legal marriage business and instead focus on ceremonies. This will, however, require significant changes to marriage law in most states – in most states any recognized member of the clergy can perform a marriage as well as judges, a court clerks. States will probably have to create certification and licensing regulations to allow for greater numbers of non-religious officiants.
To answer Ben’s question I would there is no harm in the long run, but there will be some in the short run. Since marriage is now a right, can Clergy continue to be allowed to refuse to marry people they don’t want to marry? Point being, if members of the Clergy are agents of the state for officiating a legal marriage I don’t see how they can discriminate and refuse to provide the service. I’m sure there will be lawsuits soon enough to test this question – after all, if someone can’t legally refuse to sell a cake to a gay couple, how can a state-sanctioned officiant refuse?
So I think this reality will drive clergy out of the legal side of marriage and they will just focus on the religious aspects where they can safely refuse to provide a marriage ceremony to anyone they wish.
It takes two points to draw a line in the sand.
Will it be red?
I just don’t see the point of intruding on religious doctrines dealing with marriage. All legal benefits of living together can mostly be achieved by civil unions. So, why push the envelop further? IMO, it has more to do with pushing the buttons of the social fabric of society than anything else. However, in the real, sane world of people not trying to make political points, marriage has become simply an option emphasizing traditional values, religious tenets, and coalescing a family nucleus when children are in the equation rather than achieving social status.
For instance, my husband’s best friend has had a girlfriend for years who he calls his wife, and her children his children. While they have discussed the formality of getting married, in the end they feel their arrangement suits them best. Another friend of ours, a man and woman, just celebrated their long term relationship of “not being married.” Basically, the mores of our current environment have allowed people to customize their relationships, no matter the gender pair-ups, without too much differentiation from what the statutes of marriage allows. Consequentially the rulings of the SCOTUS seemed to overreach what are attainable by the people on their own.
Marriage remains the way that many legal rights are obtained or settled. Cold we set up a a civil relationship that would have all of the same rights. Maybe. Would take a long time for people to figure it out. Probably. Churches should perform religious marriage ceremonies, and not be involved in the civil aspects at all.
Steve
In the Catholic Church, there are seven Sacraments, and except for Baptism, these are for Catholics only. (Baptism is for non-Catholics only.) These are non-negotiable. Period. Muslims cannot receive Communion. Methodists cannot undergo Confirmation. Jews cannot Confess their sins.
Marriage is between a man and a woman, and with few exceptions, they must be Catholic. The Catholic Church already discriminates based upon religion. The Catholic Church is almost 2,000 years old, and the US Constitution is a little over 200 years old. The youngsters who think they are going to change the Church are sadly mistaken.
That’s right. Additionally, I don’t think there is general understanding that Catholic aren’t just being stubborn, uncaring, or mean. They may not support abortion or gay marriage as long as the magisterium of the Church prohibits those acts.
Back in my church musician days we observed an interesting phenomenon. We always had quite a number of Jews in the congregation on Ash Wednesdays. They liked receiving the ashes (not a sacrament but a sacramental, like crossing yourself or wearing the scapular). I always thought it was kind of a hoot.
“Cold we set up a a civil relationship that would have all of the same rights. Maybe. Would take a long time for people to figure it out. ”
That was already proposed and rejected – civil unions. Marriage isn’t just about legal aspects, it’s an important social status symbol and “civil union” just doesn’t measure up to marriage even if they are legally equal.