Dark Bilious Vapors

But how could I deny that I possess these hands and this body, and withal escape being classed with persons in a state of insanity, whose brains are so disordered and clouded by dark bilious vapors....
--Rene Descartes, Meditations on First Philosophy: Meditation I

Home » Archives » March 2005 » Constitutional Marriage Amendment (Update)

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03/11/2005: Constitutional Marriage Amendment (Update)

Archbishop Alexander J. Brunett (Catholic Archdiocese of Seattle) has written this thoughtful and thought provoking piece in The Seattle Times about Defending marriage, rejecting injustice and discrimination.

The Archbishop writes:

"Catholic Church teachings regarding politicians and Communion were the subject of broad public debate in the 2004 election year. As happens in such instances, some on both sides of the debate politicized the issue for partisan gain, dividing people regardless of their religious persuasion....

...In our faith tradition, personal relationships have a social as well as a private dimension. These relationships are bound up with issues of poverty and justice, the equality and dignity of women and men, and the protection of children.

Many of this newspaper's readers, of course, do not share our understanding that marriage was created by God, not the church or state. To those readers, I would offer assurance that our intention is to support the meaning and definition of marriage that is basic to all cultures. The three Catholic bishops of Washington state will soon release a statement of principles regarding marriage to help Catholics understand the totality of church teaching on this issue. Our statement will urge Catholics to defend the definition of marriage as a union between one man and one woman. It also will reject any form of disrespect for persons, "gay bashing," or denial of legitimate rights accorded by the state to its citizens. All persons, including those of homosexual orientation, are made in the divine image and share the full dignity of humanity.

To those outside our faith community, these two statements may seem contradictory in the context of the current marriage debate. For Catholics, they bring our profession of faith into tension with our obligation to live as faithful citizens. Marriage existed before churches and governments because the union of a man and woman is unique in its ability to create children and give them the best environment for growth and wholesome development. Defending marriage between a man and woman is a matter of critical importance because it is a building block for the family, which in turn serves as the foundation for society.

Proponents of legalizing same-sex unions characterize marriage as a right. They even use terminology associated with the civil-rights struggles of the 1960s. Some of the rights they claim under the banner of "gay marriage" may indeed be legitimate and the bishops of Washington believe this is a subject for legitimate public debate. We believe, however, that this debate will gain legitimacy only if it focuses on the God-given right of all people to dignity and equality, and not from a distorted understanding of marriage. Catholic Church teaching makes it clear that if such benefits were to be legislated, they must be granted without damaging the essential character of marriage between a man and a woman.

I recognize that this issue has the potential to divide our people, many of whom have children in same-sex relationships. My hope, in spite of the rising voices of divisiveness that mar so much of our current public discourse, is that we will avoid rancor and build unity around the issues upon which we agree. Proponents of same-sex unions and so-called gay marriage have accused those defending marriage as mean-spirited and intolerant. To them I would say that Catholic Church teaching on the dignity and equality of all persons is no less clear than our teaching on matrimony. We reject all unjust discrimination, recognize the inherent dignity of all people and strive to provide every person with equal protection under the law. Our track record here in Washington will confirm that point.

We must, however, defend our teaching that marriage was not created by the church or state but by God, and that the union of a man and woman in marriage is ordered by God and nature for the common good."

The Archbishop's "point" about the character and nature of "Marriage" in the debate over the proposed Constitutional Marriage amendment is exactly what is at issue.

What concerns me about this amendment is the religious character versus civil/legal character of marriage and intrusion of government into religion and vice-versa.

Civil marriages are essentially legal contracts and unions that confer certain rights, duties, and obligations. Religious marriages are (in at least the Catholic faith) sacraments bestowed by the Church (as are the sacraments of baptism, communion, etc.). The religious ceremonies don't necessarily recognize the legal ones, and the legal ones require licenses and permits regardless of the religious conditions which were met to treat a marriage as "legal."

That's why, if a Catholic is married in a civil ceremony with a Justice of the Peace, the Church does not recognize that marriage. If a divorce occurs, the parties are still free to marry within the Church (despite prohibitions in the Church against divorce) because there was no real sacrament of marriage given and no real divorce for their purposes.

What bothers me is an amendment to codify by civil law what is a Church sacrament. The business of government should not be involved in any way, shape or form to define (even if accurate) what is a Church's article faith and a sacrament. Conversely, religion should also not be the arbitrator of what is a civil union and civil law matter based on the tenets of any single religion or combination of religions.

Imagine a scenario where instead of the general forms of "Christianity" based religions currently the majority holding sway across the US, the vast majority of the electorate, the congress, the court judges and Supreme Court Justices, and the Presidency were predominately fundamentalist Mormons, or perhaps adherents of Islam where polygamy is permitted and desirable. Would the marriage amendment then be constructed to read:

"Marriage is between a man and a woman and a woman and a woman and a woman?"

If this reflected the prevailing values, customs, morals and religious sentiments of the dominant majority of the citizens, why wouldn't this be the appropriate amendment to have codified in our laws. Under the current reasoning, by the Archbishop or the "Christian Right", this would be considered permissible.

To even consider crossing that boundary between Church and State prohibited by our Constitution invites this kind of logic and power for any religion to dominate our institutional governing body and to enact and amend these rules to conform with the prevailing beliefs that are held by a majority at that time…but most people would be bothered by the situation presented above. It's treading into dangerous territory to step on to that slippery slope based only on one's faith in not falling to the bottom.

Jon Rowe (Libertarian Lawyer and Constitutional Scholar) wrote this recent piece about Congress Can Ban Gay Marriage via the 14th Amendment?:
"Interesting post by Will Baude responding to an article in The American Conservative that Congress has the power nationally to ban gay marriage even without an FMA.

Austin Bramwell, the author of the article, argues:
Congress derives the power to pass such a statute from the Fourteenth Amendment . . . . Section 5 of the Fourteenth Amendment gives Congress "the power to enforce by appropriate legislation, the provisions of the article." It is well-settled that the Fourteenth Amendment protects the fundamental right to marry. States may not violate this right by redefining marriage as something other than it really is. Therefore, Congress can pass a statute underscoring the correct definition of marriage.

Baude notes a number of problems with this analysis, namely that Supreme Court precedent holds that it's the Court, not Congress that gets to define the substantive rights (and what is constitutionally necessary to secure their enforcement) under the 14th Amendment. Congress may then, once those rights are manifest, pass legislation to better protect them. In other words, if the Court disagrees that defining marriage to include same-sex couples violates the fundamental right to marry, then Congress may not legislatively ban gay marriage, pursuant to its 14th Amendment powers, on the grounds that such is necessary to protect this fundamental right.

Likewise in the Boerne case, Congress passed a law requiring that generally applicable laws that have the incidental effect of burdening religious practice be justified by a "compelling government interest" (they essentially tried to legislatively mandate the "strict scrutiny" std. of review for such laws) on the grounds that this was necessary to protect the "free exercise of religion," a right that the the 14th Amendment protects against state infringements. The problem with that law was a few years before, in the Smith case, the Court held that the strict-scrutiny/compelling government interest test was not necessary to protect the free exercise of religion from generally neutral laws that incidentally burden religious practice. So the Court struck down this law in Boerne.

I think the larger problem for such federalist-conservatives is the notion that "[i]t is well-settled that the Fourteenth Amendment protects the fundamental right to marry." Okay, sure there are a few cases that have stated this, notably Loving v. VA. A 14th Amendment originalist would probably rather argue that this Amendment properly has nothing to do with the right to marry, which is wholly a matter of states' rights.

If the right to marry is indeed a fundamental right, then we have to ask whether forbidding gay couples from marrying violates this fundamental right, just as it did for interracial couples in Loving. It could be argued that Loving dealt not only with a right to marry, but also with race discrimination, something clearly covered under the 14th Amendment. Moreover, if the right to marry includes same-sex couples, then why not, polygamy, etc.? The answer is just as Loving dealt with hybrid constitutional rights -- fundamental right to marry, plus racial discrimination -- so does gay marriage: fundamental right to marry, plus gender discrimination. It is also well settled constitutional law that gender distinctions trigger heightened scrutiny (the intermediate test, not strict scrutiny). And that would give the Court grounds to argue why the fundamental right to marry should be applied to interracial and same sex couplings, but not extended to polygamous and incestuous ones, which involve no plus rights (we don't have to worry about bestiality because animals have no right to contract in the first place)."

Karen on 03.11.05 @ 05:15 AM CST

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