[Karunamon]

>Marriage has historically been a religious ceremony

This is patently false. Religion does not hold a monopoly of any kind on the concept of matrimony.

There is a massive problem with your view. You think a religious belief holds any legal sway. It does not. Laws based on religious overtones are absolutely forbidden by the supreme law of the land. This might be different in other countries, but here? No law concerning an establishment of religion.

In other words, whether or not a law conflicts with any given religious belief is utterly irrelevant to that law. It should not at any point enter the discussion.

>There seems to be this sect of the American left that prescribes that everyone follow the left-wing cultural viewpoint, while claiming to be inclusive and diverse. The cognitive dissonance is palpable.

Yada yada being intolerant of intolerance is actually intolerance.

[hackinthebochs]

>Religion does not hold a monopoly of any kind on the concept of matrimony.

Neither does government, so why does it matter what government calls it?

[bane]

Because in quite a few cases since 1888, SCOTUS has specifically recognized "marriage" as a fundamental right or all people. Rights recognition like this is specifically granted in the U.S. Constitution (Amendment IX).

Simply put, if 2 same-sex people wish to partake in "marriage" they have a fundamental, unquestionable right to do so. They also have a right not to do so and partake in some other formal or informal coupling agreement at their discretion.

However, there are a tremendous number of laws which grant specific allowances, rights and responsibilities which are specifically tied to the legal meaning of "marriage", which as a fundamental right same-sex people can choose to exercise, is the only coupling agreement that will qualify them for those things.

In terms of efficiency, changing thousands of laws, and the U.S. Constitution to allow for some other separate but equal coupling agreement is less efficient than just ensuring that same-sex couples can exercise the rights they already have.

There's some argument that the government shouldn't be in the marriage business, but it's what we have to work with right now.

[hackinthebochs]

>Simply put, if 2 same-sex people wish to partake in "marriage" they have a fundamental, unquestionable right to do so.

Is that the wording in the decision, or is that your modern understanding of the word marriage influencing your interpretation?

[bane]

No, SCOTUS has affirmed "marriage" in the general sense as being a fundamental right 14 times. There's not a lot of qualification in the recognition of the right.

e.g. Maynard v. Hill (1888)

"Marriage is something more than a mere contract, though founded upon the agreement of the parties. When once formed, a relation is created between the parties which they cannot change, and the rights and obligations of which depend not upon their agreement, but upon the law, statutory or common. It is an institution of society, regulated and controlled by public authority. Legislation, therefore, affecting this institution and annulling the relation between the parties is not within the prohibition of the Constitution of the United States against the impairment of contracts by state legislation."

Meyer v. Nebraska (1923)

"While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."

Skinner v. Oklahoma (1942)

"But the instant legislation runs afoul of the equal protection clause, though we give Oklahoma that large deference which the rule of the foregoing cases requires. We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands, it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty."

Griswold v. Connecticut (1965)

"We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions."

etc.

So it's actually a modern assertion that gay-marriage is not allowed by law as "marriage" in the general sense has been recognized and reinforced numerous times, without specificity as to the nature of the parties involved. It's the modern dawning realization by parties wishing to marry and being denied, and by parties wishing to deny them, that the scope of who can marry is largely unconstrained.

Persons against gay-marriage are actually in a battle to contract the existing right, while persons for gay-marriage are looking for explicit confirmation that they are included in the right. Given the general trend of rights expansion over American history, it's unlikely that an argument to contract an existing right will win without a general rewrite of several Constitutional Amendments (privacy, due process, etc.) explicitly naming the minority class that they wish to specifically oppress.

[hackinthebochs]

Just so you won't feel your efforts here have been entirely useless (as one can often feel in such conversations), you have convinced me of this point, that restrictions on marriage are a modern view and not supported by ample case law.

[bane]

Thanks for the reply. I too have strong emotions about this subject, but am trying to keep conversational about it.

If in question about the Constitution and the intent of it, I usually just refer to the first bits of the Declaration of Independence

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness"

[Karunamon]

Because the government definition is tied to various contracts and benefits.

[hackinthebochs]

But those contracts and benefits can be had without the word. Was Prop 8 attempting to permanently remove the ability to gain those benefits?

[Karunamon]

Which is a longer and more arduous process to fix. In the mean time, you've got a constitutional issue that must be addressed now.

California had a few options here.

* Redefine all "marriages" as "civil unions". Makes the religious folks and libertarians happy, but introduces a problem in that you've deleted something that every other state recognizes. How will marriages in other states carry over? How about contracts that recognize a marriage (out of state insurance comes to mind)? Etc? Those would all be invalid. You've also ensured that any union in California (ANYONE's, not just LGBT's) would be invalid in any other state because they're legally not marriages anymore.

I say this solution introduces what would be known in the packaging world as dependency hell. Too many other things rely on the first thing to exist in its current state. You've introduced a change that is going to break a lot of things without dealing with them first.

Bad idea all around.

* Amend the legal definition of marriage to include any two people. Simplest thing that could possibly work, ensures that marriages performed in the state will be recognized elsewhere and for other purposes. No dependency issues. Annoys the religious folks a bit, but religious views have no say in law anyways!

[hackinthebochs]

This is a rational argument, and this is the argument people should be having with those who oppose it rather than name calling and mudslinging. But nothing that you say here justifies calling those who oppose this bigots, etc. Either way, the California legislature is probably the wrong place to have this discussion, as a marriage in California wouldn't necessarily be recognized in other states anyways.

[Karunamon]

I think that was part of the goal of redefining marriage legally. Which is pretty damn brilliant once you think about it.

The full faith and credit clause ensures that contracts (which is what a marriage technically is) are valid in all other states in the union. This completely sidesteps any local laws that might be otherwise inferior, and also ensures that the case can be easily escalated (all the way to SCOTUS if necessary) in case of issues.