The subject of homosexual “marriage” has come up again in blogdom… this time at Dan Drezner’s place. Dan has it right, for the most part in that the constitution won’t ban it, nor at this point will an amendment pass to deal with it. Discussion at:
danieldrezner.com :: Daniel W. Drezner :: Why the Constitution will not ban gay marriage
As you’ll see, I have my concerns about the amendment scenario for reasons that won’t be quite obvious, unless you’re a stident of constitutional history. As I point up in Drezner’s site:
“A prohibition on homosexual unions wasn’t written into the constitution because such things were assumed, and therefore never legally defined.
Proof of these assumptions is easy enough to find.
It is interesting for example, that Jefferson, (arguably the biggest social liberal of the lot) thought homosexual acts to be worthy of hanging… (I commend Fawn Brodie’s Jefferson to your reading list) and yet he never indicated anything of the sort in his … our… documents.
Clearly, there was some assumptions made on the part of the founders in this area…. cultural assumptions.
And here, we walk a legal fine line, I fear.
Government, you see, does not operate inside a cultural vaccum. Rather, it exists inside a cultural context it must not run afoul of, lest it become irrelevant to the people it’s supposed to be governing. Yet, while law and government is a more exact science, culture is less so. And so, codification of the culture is problematic at best.
Given this, Jefferson, and the rest of the founders apparently took the attitude that their best tack would be to write laws and a framework that would at least not run afoul of the existing culture, without specifying without attempting to codify the boundires of that culture.
Dan, I think, is right insofar as such an amendment not passing, because it, unlike the remainder of the constitution, it attempts to define the social boundries of the culture it’s charged with governing.
But I wonder what it is then, that the culture has to protect itself, in the end, if not government.”
This is, it seems to me, the legal vs the cultural. And clearly the founders were making chocies based on cultural assumptions. This is today resulting in questions such as Holman W. Jenkins Jr, in the WSJ asks
“If marriage is a mere “legal” right, who can’t get married? If any two people have the right to the legal benefits of marriage, why not three people? Why not two brothers? Why not a man and his father?
It’s hard to see on what basis marriage could logically be denied to anybody. Right now, the state doesn’t ask if a man and woman are heterosexually inclined, if they love each other, if they intend to have children. Marriage largely regulates itself, with the exception being government efforts to prevent marriages intended solely to obtain a green card. But in the world ordained by the Massachusetts supreme court, wouldn’t the state be obliged to make sure two women who want to get married are really lesbians and not just two women trying to acquire the legal advantages of marriage? How else to stop marriage from becoming a right available to any group of people who simply want to organize their affairs as “married” persons?
Right now, the law makes no formal presumption about the sexual orientation of people getting married, just their gender: They have to be of opposite sexes. Yet that small stipulation seems to have succeeded, for the most part, in keeping marriage from becoming a mere contractual convenience. “
I’ve already written at some length about all of this, incidental to the Canadian SC ruling last June.
The problem is a bit more basic, even than a religious question in our increasingly secular society. At it’s root, this is a matter of which will triumph… law and government, or the culture that created said law and said government. Like it or not, the values being railed against by those seeking to install this travisty, are not simply religious values. They are also deep in the roots of our culture. The implications are simple enough to see, then…
