Marriage Is Not a Right, It is a Privilege
Society recognizes marriage as beneficial and consequently affords some privileges towards the union in order to endorse it.
Society does not recognize something called “gay marriage” and hasn’t shown the want to afford it the same privileges as marriage.
In order for the advocates of “gay marriage” to be able to get these privileges, it must convince the population to vote yes on it. We make law with the people or through the government branch of the people, which happens to be known as the “legislative branch” (Congress in the U.S.). If you look up the definition of “legislative”, you’ll understand the label. Something of this nature is best left up to a direct vote. Go to the people and ask them for their vote. Either that, or try the Congressional route.
Don’t ram it down our throats through the judiciary. That would be a prime example of something called judicial activism.
Don’t claim that marriage is a “right” when what you are really doing is telling people to change the few millennia-old definition of marriage for the benefit of some privileges. What was once a priviledge given by society is now a demanded “right”. To demand that those privileges are now somehow “rights” is to be asking for special status under the law. To claim that you are asking for the same rights is dishonest because you are asking for privileges.
[The court's] interpretation MUST take place within “”the consent of the governed” from which ALL governmental authority is derived!
What does that mean, though? Does that mean every judgment then needs to pass a popular vote?
it is quite another to say “”When The People ratified the right to privacy, they were consenting to abortion on demand.”
The people never ratified the right to privacy. That word is not found in the Constitution. Does that mean that invasion of privacy is legal, since the people have not voted it into the guiding instrument?
I think that’s correct Dave. There are already several churches that will “marry” same-sex couples. But in the eyes of the law, it doesn’t amount to much.
“Bottom line, this issue should be left up to the individual legislatures in the individual states.”
I must disagree. It should be left up to the individual CHURCHES!
The reason that issue is still so heated & contentious is because the right to an abortion is clearly not written in the constitution, it never was, and We The People were never asked for our consent to put it there.
But the job of the court is to interpret the constitution, exactly because they couldn’t even conceive of all of the things they would have to put in there even if they wanted to. That’s why they ended with the tenth amendment. Madison et al. knew that there would never be an absence of gaps in the constitution; in fact, constitutions are supposed to include every little thing. The Judiciary fills that gap by interpreting what is there.
I think it ultimately comes down to your opinion of judicial review. If you think John Marshall had his head up his ass, then any judgment that affects a change in the law (abortion, segregation, miranda rights) is an example of judicial activism. But if Marshall was right, then it is the judiciary’s duty to be the final arbiter of the constitutionality of a law.
Well of course marriage is a “right”. All people have the right to marry — but that doesn’t mean a government has to recognize marriage at all, much less EVERY form of marriage.
In some countries, child marriage is legal — but WE don’t recognize it here. In others, polygamy is legal — but WE don’t recognize it here. In still others, same-sex marriage is just fine — but guess what? WE THE PEOPLE do not recognize it here. Those people may be legally married in their home countries, but if they move to the USA, they instantly become single again — there isn’t even a divorce.
So if you want to marry your 8 year old step-daughter, or your fourteenth wife, or your own brother, fine. Have a little ceremony, get a house, and live together just like any other married couple does.
Just don’t expect OUR government to recognize it as a legal “marriage”. No, that particular priviledge is granted by “We The People”, not by The Creator. It’s called “Consent of the Governed” in our Constitution, and without that consent, your peculiar arrangements are legally invalid.
So is SSM a constitutional right? The simple answer is NO — because We The People never gave our Consent to that. And one or two judges cannot read our consent into a constitution that is totally silent on the question of Marriage, gay or otherwise. Attempts to do so are doing a great job of making sure we DO make our consent explictly clear in our constitutions, state by state by state. The answer is NO, SSM is NOT a constitutional right!
If we have to spell that out for you in the federal constitution, i’m quite sure we will. Just keep pushing us.
But hey, whatever floats your boat. There’s no law saying that two boys can’t play house together. Just don’t expect anyone to take it very seriously. We did not consent to that.
Thanks for re-posting this, I was wearing out my scroll wheel.
Something of this nature is best left up to a direct vote.
What are the criteria for determining if an issue is “worthy” of a direct vote? I thought that’s why we had a representative republic?
The answer is NO, SSM is NOT a constitutional right!
Marriage of any kind is not a constitutional right. Equal protection under the law is a constitutional right. If you want to grant a privilege to one group of people and exclude others, that’s the amendment you’ll have to repeal.
one or two judges cannot read our consent into a constitution
Actually, that’s part of the job description of Supreme Court Justice.
It’s called “Consent of the Governed” in our Constitution, and without that consent, your peculiar arrangements are legally invalid.
So, if there’s a vote tomorrow that golfers cannot be married since it creates golf widows every Sunday, thereby harming marriage, that’s OK? There’s a term for that: tyranny of the majority.
Was the Civil Rights Act put up to a popular vote? How about Brown v. Board of Education as a piece of judicial activism? Were those justices wrong to end segregation, when part of the population felt it was their privilege to segregate? The judiciary acts as a check to the excesses of the commmon will. Federal judges are appointed for life for that very purpose.
If we have to spell that out for you in the federal constitution, i’m quite sure we will. Just keep pushing us.
That’s obviously the plan of the gay marriage movement; force a motion on a constitutional amendment, create a constitutional crisis which results in an endgame at the 14th amendment. Those who are pushing for a gay marriage amendment are actually playing into their hands.
Don’t claim that marriage is a “right” when what you are really doing is telling people to change the few millennia-old definition of marriage for the benefit of some privileges.
So all of humanity, for the rest of time, needs to live by the standards of our millenial ancestors? Shall we get rid of all of our wheels and fire, while we’re at it?
Whoops, I think I may have misread your argument, Rob.
You agree with me on my point; you’re just saying that individual legislastures and individual states should decide if gay couples should receive tax breaks and stuff…. right?
What are the criteria for determining if an issue is “worthy” of a direct vote? I thought that’s why we had a representative republic?
I don’t know what the criteria is for determining what gets a direct vote and what is for our elected representatives. I imagine that these kinds of hot button societal issues are better left to direct vote, but that is admittedly just my opinion.
Equal protection under the law is a constitutional right. If you want to grant a privilege to one group of people and exclude others, that’s the amendment you’ll have to repeal.
That’s simply not true. Marriage doesn’t fall under the “equal protection” clause precisely because we are not talking about rights, but about privileges.
Were those justices wrong to end segregation, when part of the population felt it was their privilege to segregate?
Yes they were wrong. It’s called freedom of association.
The judiciary acts as a check to the excesses of the commmon will. Federal judges are appointed for life for that very purpose.
Do you have a source to back up your claim that the reason federal judges are appointed for life is to prevent the excesses of the common will?
So all of humanity, for the rest of time, needs to live by the standards of our millenial ancestors? Shall we get rid of all of our wheels and fire, while we’re at it?
Can you just address the argument instead?
Ok forget child marriage for a moment — what about incestuous marriages? Some states allow you to marry your first cousin, others don’t. Clearly the State has the authority to set that standard wherever the voters decide it should be set — it is not a constitutional issue (yet).
Perhaps you could explain to us why you think polygamy is such a bad thing? I think this is relevant, because the philosophical underpinnings of our constitution depends on balancing the rights of the individual against the greater good of the populace.
That’s actually a debate for another day. We can hold different opinions on whether or not polgamy is good or bad, but there is no question (yet) that The State has every right to allow or prohibit multiple marriage as “We The People” see fit. If we want to enact a law or constitutional amendment to allow it, we can. But it would be an injustice for a judge to simply read a right into the constitution that is clearly not there, never was, and more importantly — we never consented to.
Consent of the governed is a very high principle in this country. You want to see the same-sex marriage issue become a festering sore on society that lingers for generations? Just let a judge force it on us without seeking our consent, like they did in Roe v Wade. The reason that issue is still so heated & contentious is because the right to an abortion is clearly not written in the constitution, it never was, and We The People were never asked for our consent to put it there. So the anger rages on, with no end in sight. SSM will be the same, if the will of the people is ignored, and new constitutional rights are invented out of thin air by an unelected elite.
Dave, Loving is in no way similar to the SSM issue. Unless you think being a man or a woman is no more relevant than the color of your skin.
Besides, Loving was about laws that kept the races apart. Marriage is a pact that brings the sexes together. Do you not see the difference between racial segregation and gender integration?
I think that pretty clearly addresses the fact that the 14th amendment was aimed at more than simple unalienable rights.
Alright. My mistake. My larger point still stands however – the rights and privileges are still the same for everybody. Only one man and one woman, consenting age, and non-relation may marry. That’s the rule for everybody.
Do you who oppose same-sex marriage also oppose the Supreme Court’s ruling in Loving v. Virginia, which declared that a ban against interracial marriages was unconstitutional? Would you have liked that to be put to a vote as well?
That’s the rule for everybody.
Pretty simple isn’t it, Liq? That “equality” dog won’t hunt — gay people ARE being treated equally WRT marriage. That’s precisely the problem for them!
Heh, this “moderninstances” kid has a lot to learn.
Damn straight. Better the tyranny of the majority than the anarchy of the individual, woudn’t you say? “Cant we all just get along?”
I mean, if we have to have laws in the first place (because some just people refuse to get along with their neighbors), then who is better to make those laws than you and your neighbors, working towards a consensus?
MI, your point regarding Federalist #51 is well taken, but not particularly relevant. There are more than a few polygamists and pedophiles who also feel the “tyranny of the majority”, and would love to change marriage law to suit themselves.
I would suggest that if We The People have the right to ban multiple marriages and child marriages, then we also have the right to ban same-sex marriages. And if we do not have the right to ban SSM, then what right do we have to ban polygamy or child marriage?
Would you have liked that to be put to a vote as well?
One other thing: We the People have every right to change our constitution as we see fit. Obviously the people didn’t feel strongly enough about the race issue to do that. The same cannot be said regarding SSM — 13 states amended their constitutions just last year, with more coming. And every act of judicial tyranny that ignores the consent of the governed just brings us one step closer to a federal amendment.
Marty: I don’t think we can equate polygamists with pedophiles. The moral issue at hand relates to the person entering into a relationship having the ability to comprehend the consequences of the act of marriage. One could hardly make the claim that children are “up to this.” [*]
The same line of reasoning could be applied to a very ill person. Such marriages occur from time-to-time when a usually predatory individual marries a wealthy but ill person, with the intention of inheriting their money. Consensuality should play an important role in deciding whether a marriage should be legal or not.
There really are no such constraints with respect to polygamy. Perhaps you could explain to us why you think polygamy is such a bad thing? I think this is relevant, because the philosophical underpinnings of our constitution depends on balancing the rights of the individual against the greater good of the populace.
[*] I think we all realize that quite a bit more could be said about why marriages with children should not be allowed!
fifty years from now, a majority of the population thinks that gay people can get married, that’s the way the court would have to rule. But if in another fifty years, if a majority of the population thinks that gay people cannot get married, the court has to reverse its earlier decision.
(i wrote a really long answer explaining why this was wrong, then i realized it’s true ina way)
Kinda sad, but almost true. Isn’t that what will happen if Bush gets his SCOTUS nominations? Will they throw out Roe? It’s a good question — but throwing it out really means throwing it back to the states, and to the people.
Which seems like a wise thing to do, because we’re a long long way from consensus here.
Maybe what makes Roe bad law is that it flies in the face of our consent. We can have such a law in the constitution, but should be forced to demonstrate our consent first, through the legislatures. There is a process for putting novel ideals into the constitution you know. And we can see what happens when we take shortcuts — we end up with festering cultural sores.
Thanks.
See that’s just the thing. It is very reasonable to infer/interpret that when the people ratified (what was it, the 4th amendment?), that they consented to a so-called “right of privacy”. It is not so reasonable to infer/interpret that into consent for abortion.
A very simple test is this: If the amendment being interpreted had instead explicitly spelled out that which is being interpreted into it, would it pass ratification today? IOW, would we have consented to such an intepretation?
No, you don’t have to have a public referendum for every constitutional question that arises — you just have to show a little respect for the will of the people, which is usually not too hard to interpret.
Isn’t that what will happen if Bush gets his SCOTUS nominations? Will they throw out Roe?
But will they throw it out because they think it’s bad law, or because they think that popular opinion is that it is bad law? Now, I don’t want to get into a whole thing here about the accuracy of polls, but all the major polls show that a majority of this country wants abortion to be legal. (http://www.pollingreport.com/abortion.htm)
So, following your premise of a judge needing to make determinations based on the will of the people, it wouldn’t matter how many Justices Bush puts on the bench; they would have to keep abortion legal, because that is the popular will. Whereas, if it’s truly bad law, they could determine that it should be illegal, flouting the will of the people.
[Rescinding Roe] seems like a wise thing to do, because we’re a long long way from consensus here.
But is consensus necessary, or popular will, a simple majority?
Until the Constitution is amended to change the role of the Judiciary and strip it of its independence, there will always be judgments that go against popular opinion. That’s an issue more impactful than either gay marriage or abortion.
Heh, this “”moderninstances” kid has a lot to learn.
From The Reactionary’s Cookbook: Eight Simple Rules for Inflating Your Argument:
“Rule No. 1 in trying to strengthen your argument without really doing so is to denigrate and dismiss your opponent out-of-hand, right off the bat. Rather than engage in a debate with intellectual honesty and rigor, call into question your opponent’s character, experience, or motives. This will have the affect of giving you the appearance of authority, and will establish you as the dominant orator. Most times, it will also cause your opponent to react emotionally, abandoning reason and clouding their judgment, thereby disarming their interest in their argument. Before you know it, you won’t have to actually defend your position, as your opponent will either get angry and storm off, or just dismiss you as an incompetent boob and give up. Either way, you win!”
Better the tyranny of the majority than the anarchy of the individual, woudn’t you say?
I’m guessing you’re not a big James Madison fan. See Federalist No. 51 for a discussion on why the tyranny of the majority is not, in fact, better.
The reason I don’t believe equal protection applies to gay marriage is that gay men are free to marry under the marriage laws of most states, if they marry women. The are “”equally protected” by the law that regulates the marriages of men to women.
Beautiful, you hoser! Finally, a direct and reasonable answer: for that, you get four pounds of back bacon, on me. The problem I see with your argument is that it’s the law itself that is in question, not the application of that law to the populace. The law itself is prejudiced towards one group and away from another. It’s saying that the only way to access these privileges is through this route, and is therefore exclusionary.
A very simple test is this: If the amendment being interpreted had instead explicitly spelled out that which is being interpreted into it, would it pass ratification today? IOW, would we have consented to such an intepretation?
you just have to show a little respect for the will of the people,
OK, so a judge must base their interpretation on what they think the general populace would consider acceptable (which is different than reasonable)? This would mean that the interpretation of the law would depend on the make-up of the society at that time; if, fifty years from now, a majority of the population thinks that gay people can get married, that’s the way the court would have to rule. But if in another fifty years, if a majority of the population thinks that gay people cannot get married, the court has to reverse its earlier decision.
That premise is in opposition to the idea of judicial independence. In Federalist 78, Hamilton wrote:
“This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”
If judges are to follow the will of the people, they are no different from the legislative branch. It’s just not their role.
By the way, and not that it matters, but your premise that judges are beholden to current popular opinion is in opposition to the approach of the “conservative” Supremes. Rehnquist, Thomas, and especially Scalia are strict constructionists, who look to the meaning of the constitution when it was written for interpretation. (Scalia and Rehnquist, by the way, ruled AGAINST popular opinion in the recent medicinal marijuana case.)
BTW, I appreciate that the tone of this discussion has become more reasonable.
Now, I don’t
want to get into a whole thing here about the accuracy of polls, but all
the major polls show that a majority of this country wants abortion to
be legal.
I don’t either, but this is incorrect logic: overturning Roe does NOT make abortion illegal. States and counties that want it, can and will have it. States that do not, will not.
And the simple phrase that “the majority supports abortion” is a FAR CRY from saying “the majority supports partial birth abortions”, which is how it is currently being intepreted. And besides, a simple majority is not consent — the near 50/50 split shows just how contentious this really is! It takes at least a 2/3rds vote, in many many houses, and over a very long time to amend the constitution with something really novel. That is precisely to avoid what we have here, and may get more of, with SSM.
But like i said, this kinda thing just builds support for the Federal Amendment. Because We The People have a lot more consensus on this issue than many are willing to admit.
Marriage has been corrupted by the state’s involvement. Marriage should not be a tax break, nor an inheritance privilege, nor any other legal advantage. Marriage is a private commitment between two people (traditionally, a man and a woman) who have entered into a covenant with each other. This is no more a privilege than freedom of association. To think that anyone (gay, whatever) should be forbidden from that is arrogant in the extreme.
But the job of the court is to interpret the constitution, exactly because they couldn’t even conceive of all of the things they would have to put in there even if they wanted to.
That’s perfectly fair, except that interpretation MUST take place within “the consent of the governed” from which ALL governmental authority is derived! It’s right there, plain as day, in the constitution!
It’s one thing to say “they couldn’t even conceive of all of the things they would have to put in there even if they wanted to”, it is quite another to say “When The People ratified the right to privacy, they were consenting to abortion on demand.” No, the people never consented to that — they were never even asked. Same goes for SSM — some judge might “interpret” one amendment or another to read that SSM is legal, but not if he takes consent into account — we never consented to that back then, and it appears we are not ready to now.
Like i said, the right to ssm, or the right NOT to ssm, is nowhere written into the constitution. But it soon will be, if judges continue to ignore the consent of the governed. 13 states just last year, with more in the pipeline.
If you dont want to see a federal amendment banning SSM, you’d better start reigning in your activist lawyers and judges, because that’s what you’re going to wind up with.
Here’s the applicable text of the fourteenth amendment:
I think that pretty clearly addresses the fact that the 14th amendment was aimed at more than simple unalienable rights.
The reason I don’t believe equal protection applies to gay marriage is that gay men are free to marry under the marriage laws of most states, if they marry women. The are “equally protected” by the law that regulates the marriages of men to women. Just as straight men are equally protected by the newer laws that prevent men from marrying other men.
If you want gay marriage to be legal, convince the electorate that it should be legal.
Marriage mostly certainly is a right, one that’s protected by the constitution too, in that you can join yourself spiritually to anyone else you choose in any type of ceremony you choose in any sort of church. The freedom of religion guarantees this.
What is not a right are the benefits politicians have bestowed on this type union. Tax breaks and other perks that go with marriage are not guaranteed by the Constitution, nor is there a requirement in the Constitution that requires any given state to recognize any given type of marital arrangement.
Bottom line, this issue should be left up to the individual legislatures in the individual states. It is simply not a problem for the federal government, either for the courts or the federal legislature.
The issue of court decisions has become too complicated. The job of the judges is really quite easy.
Here’s how I view the questions they face:
Does [law/policy in question] violate any part of the U.S. constitution?
Now lets use a few examples:
Does a law installed by a state prohibiting abortion violate any part of the U.S. constitution? If you believe it does violate a right set out in the constitution, which right is it? There’s not one I can think of.
Here’s another one:
Does a law installed by a state defining marriage as the union of one man and one woman violate any part of the Constitution? Many would say that it violates the equal protection clause of the 14th amendment, but I don’t think that’s true. Marriage would be defined, for all u.s. citizens, as a union between one man and one woman.
See how simple this is? When faced with a question about whether or not a law or policy is constitutional one has simply to inspect the actual contents of the Constitution. If the issue is not addressed specifically in the Constitution (as is the case with both abortion and gay marriage) then the court should point out that the law/policy is not prohibited by the Constitution and then invoke the 10th amendment and leave the matter to the states to decide.
This is how our system is supposed to work. Sadly, it hasn’t worked that way for some time.