|
I mention Murder to show that the religious argument is just DUMB. Just because a religion has a certain set of dogma, does NOT make that dogma solely religious in nature, The Ten commandments has several bans that are the law of the land today, including theft, murder and perjury. On the other hand just because the state makes something legal or illegal does NOT make it part of your religious dogma.
As to marriage, the general rule throughout history was that it was more a merger of two families then two people. Marriage determined legitimacy and thus who had a duty to support any children of the couple (Inheritance was another factor). If the children were illegitimate, no one other then the parents had a duty to support that child, but if it was legitimate, then the law set forth who else had a duty to support that child including Uncles, Aunts, Cousins, Grandparents, Brothers and Sisters (This duty of Support was often enforced by the local church, but also enforced by law if needed).
Now the adoption of the Modern Welfare System tended to end the need to require support from anyone other then your parents. Since the adoption of the modern concept of Welfare that the State had a duty to support the poor (Other then trying to get other relatives to support that child) the old extended family concept tended to die out (Another factor was the fact people became more mobile and most people moved miles if not states away from their other relatives and it became nearly impossible for the state to force such relatives to provide support).
In the US, modern Welfare is a product of the Great Depression, reinforced by the Great Society program of the 1960s. The problem is both changes made an assumption that your extended relatives will still support you in times of need. This concept is still on the books, when you apply for welfare you have to state that you have tried to ask for support from relatives, but they all refused to help you or you could not get in contact with them.
As you can see the extended family was used in the past as part of the Welfare program. It worked in the days when 90% of people lived on the farm and near they own relatives, but since people moved to the cities it has NOT worked (This is tied in with people moving away from their relatives which made support from the extended families difficult). Thus starting in the 1870s the modern Welfare system was started (I should note one of the reason Welfare was started in the 1870s was it was found that women supported their men in the General Strike of 1877, do to the fact the women saw no harm to themselves for wages were so low they and their Children would starve to death whether their men died in the violence or survived. To get the women to undermined their men, i.e. to tell the men NOT to revolt for the state would cut off any welfare support, the state had first to start to provide such women support. Thus the first modern welfare system were started in urban areas in the 1870s and extended to rural areas only in the 1930s and more to undermine unions efforts to strike for higher wages.)
Given the history of support/Welfare/Extended family obligations, marriage between a man and a woman with the expectation they would have children, who when they came of age would be part of the extended family that people can call on for support was the normal rule in most of the world. Thus was the only rule in the Western world (There is some records of Homosexual marrying within the Catholic Church in the Middle Ages, but that was in the days when marriage was done by local tradition and then it was "blessed" by the church, this ended with the Reformation, for both Protestant and Catholics wanted to make it clear who was married to whom for both the issue of support and inheritance. Everyone wanted to avoid what happened to the Two Princes of Edward IV, brother of Richard III. Edward told his council of State he married his wife by simply exchanging vows, for that is the only way he could bed her, under English Law this was a Valid Marriage UNLESS one of the two people who entered into it, was already married. In the case of Edward, he had earlier in his life promise to marry another women, in the future not at that time, when he wanted to bed that women. Under English law that was also a valid marriage, which made him ineligible to marry the women he said was his wife, thus the children born to that second marriage were illegitimate. Such cases were NOT uncommon among the Upper Middle Class of the time period, so during the Protestant Reformation the Upper Middle Class insisted that such marriages be outlawed and replaced by ceremonial marriages only. Note the switch was NOT to leave two people marry if they wanted to, but to make it clear who was marrying whom and when AND thus who had obligations to that married couple AND their offspring, and who the married couple and offspring's had duties to).
I bring all this up, for while we no longer think in terms of legitimacy (In most states the concept has been abolished) the concept that a marriage is something more then two people saying they are married remains. It is no where near what it was even 100 years ago, but it still survives. Given the survival of some aspects of the extended families (Including the Right of the State to ask welfare recipients to ask relatives for help first) can be viewed as still the law of the land (Through no where near what it was even 100 years ago) equal protection of the laws not only includes the couple who want to marry but their relatives. Remember, the courts are ruling on the Equal protection clause of State Constitutions. If you view the extended family as a factor and that members of most extended families are NOT willing to extend their obligations via same sex marriages (or you are forcing such relatives to accept whatever duties the extended family still have to a married relative) then how is denying same sexes marriages a denial of equal protection given the relatives have NOT previously knew of that obligation and it is now being imposed on them by the courts under the Equal Protection Clause of the State Constitution.
Notice I am saying equal protection covers not only the same sex couple who want to marry, but their relatives and those relatives must be treated equally also. At present, in most states, everyone can be viewed as being treated equally by being banned from marrying anyone but someone of the opposite sex. The reason for that is to make sure the extended family knows who it has an obligation to support and it is a obligation that has a long history. You can NOT claim the same history as to same sex marriages, the relatives have no idea what legal obligation is expected of them by the law as to the same sex coupled and thus a denial of such relatives equal protection of the laws.
Now, I am just pointing out that the argument against same sex marriage can be made without any reference to Religion. That being the case, the ban on same sex marriage is NOT a religious dogma being imposed by the State, but ban based on history and the needs of the state to set forth who has obligation to whom when it comes to the issue of support. Religion may be grounds people want to impose a ban on same sex marriages, but the same can be said for Murder, Theft and Perjury. Being a religious dogma, by itself, does NOT make something unconstitutional IF a secular argument can be made for the same law. The concept of support and obligation from extended family members is more then enough of a secular Argument to defeat any claim that religion is the sole reason the ban on same sex marriages was imposed and thus any First Amendment attack will fail, just like a First Amendment attack on murder, theft and perjury will fail, there are secular reasons to ban murder, theft and perjury and just because they are banned in the Ten Commandments do NOT make such laws a violation of the First Amendment.
Notice I did not mention same sex marriage meeting constitutional muster or not. I just wanted to point out the best argument against it from a constitutional point of view. Remember same sex marriages (Except for Maine which did it by statute) has been imposed in every state by Court order (In Vermont the state legislature had to pass a separate bill setting up what its court said had to be passed, but the change in the law was still Court Ordered). All of these decision strike down existing law, most based on Common Law Rules that has existed for Centuries. The Equal Protection Clause in the Federal Constitution and most state Constitution was to make sure no class of people where subject to special laws that in effect treated them substantially different from the average citizen without some reasonable justification (for example it is NOT a violation of the Equal Protection Clause to permit 16 year olds to drive while 15 year olds can not, both people are being treated differently, but the state has said one is capable of driving and the other is not and such a determination by the state is NOT a violation of the Concept of Equal Protection).
The Courts are more concerned about statutes that treat people differently then how the Common law treated people differently (The reason is the courts presumes that the legislature, when they passed the Equal Protection clause in the State Constitution, knew how the common law treated people differently and thus to end such non equal treatment was NOT why the Equal Protection Clause was added to the State Constitution unless the state legislature made changes in the law at the same time it adopted the Equal Protection Clause).
Thus, given same sex marriages were NOT permitted under the Common Law, when the Equal Protection clause was added to the State Constitution, the Courts can presume that the State Legislature, when they adopted the Equal Protection Clause, did NOT intend to legalize what had been illegal when the clause was adopted. The Equal Protection Clause was intended for future Statutes NOT the law when it was passed and thus if the law existed when the Clause was added to the State Constitution it is constitutional.
Please note, I am just pointing out the Constitutional issues, I have tried to avoid the issue of Same Sex marriages in and by themselves. The reason for that is simple, if same sex marriages violates a State's Equal Protection Clause, that is the way it is going to be, but the opposite is also true, if a State rules that the State's Equal Protection Clause does NOT, that is the way it is going to be. Religion may be the Driving force behind the ban on same sex marriage, but the constitutional issue is more what is required under each states' equal protection Clause?
|
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
