I’ve long thought that it’s a huge error for the state to have taken over from religious bodies the role of “solemnizing” “marriage”. The state should do nothing except regulate and enforce civil-union contracts between consenting parties, whether or not they are of opposite sexes; the word “marriage” shouldn’t even appear in the law. Leave that word and its definition to the church, synagogue, mosque, or what have you.

It’s an interesting thought, but historically backwards.

The huge error (from my point of view) was when the religious authorities took over marriage (in, roughly speaking, the twefth century). The Jewish practice of the marriage contract (which predates Christianity) requires the man to give the woman something of value. It’s property law.

Let’s not mistake norms established in the medieval period as being somehow historically transcendent. Besides, while the Church may have taken over some aspects of regulating marriage, the State never gave it all up. (Civil marriage is legal in all fifty states—no clergy required.)

And for a more modern example, in the Goodridge decision, the Massachusetts SJC noted that for several years in Colonial Massachusetts the law prohibited clergy from solemnizing marriages.

And in 2007, I respectfully ask the assembled clergy to butt out of wedding ceremonies to which they have not been invited.

I guess the real question is whether there is any situation in which long standing Western cultural prohibitions can be justifiably be used as a brake to social change without said Western culture being guilty of being a bad unjust culture. If we can’t justify anything other than perfect equality of treatment, can other cultures do so? Should gays criticized for expend so much moral capital so much on this issue that marginally affects 1 to 4% of the population instead of somewhere else? Perhaps they should just enjoy life. You asked for alternative opinions.

http://www.tx.lp.org/release-20050120.shtml

The Libertarian Party regards prohibitions against same-sex marriage as the government establishment of religious tenets as law, in violation of the First Amendment.

Tracy W, you can’t be serious. I am sure you recognise that what those people do directly harms someone else. Getting married to someone doesn’t. Also, please note that “contempt for the rule of law” is a tongue-in-cheek reprise of Brett’s cost analysis (though I admit it wasn’t in the original). Brett, who is seemingly in favour of same-sex marriage himself, nevertheless is opposed to its legalisation (achieved through particular means) on the basis of the cost of the backlash in terms of damage for the rule of law. I am not the only one that have pointed out that in this thread that this position is asymmetric: if you factor the cost of “damage to the rule of law” of legalising same-sex marriage (through certain means), you have to show it is greater that the cost of “damage to the rule of law” of not legalizing it.

To sum up my position, anyone standing for the rule of law and the limitation of arbitrary powers should stand for the legal recognition of same-sex marriage (or the abolition of the legal recognition of marriage), at least as a matter of principle, because it is a direct violation of equality before the law and an abusive restriction of individual consensual behaviour that harms no one.

Each time, power is wielded to prevent one of such behaviour or to introduce distinctions before the law, the burden of proof is on the one wielding it, not on those subjected to it. A libertarian should have no problem understanding this.

And, equally emphatically, it does not mean judges deciding to read into an existing constitution whatever policies they happen to think would advance justice, without respect to the text or history of that constitution.

As I sad, if I thought the arguments that same sex marriage is constitutionally required were persuasive, I’d be for it no matter how much the public didn’t like it. But I don’t find them persuasive.

The full force of the law has been used to actively present actions that in the opinions of other people are entirely positive, that they entertain in their intimity and value greatly.

Such as raping one’s own children (I believe the passage these people have is “introducing them to sexual experience by someone who really cares for them”), voting on behalf of one’s wife, regardless of one’s wife’s views on the matter, beating your wife if she falls short of her duties, presenting views on state television as to the advisability of separation of the races and the inherent inferiority of everyone who is not white, etc.

If you feel contempt for the rule of law because it currently forbids same-sex marriage, then I presume you think these people are equally justified in feeling contempt for the rule of law simply because it forbids their own pleasures.

Government is never going to be perfect. The rule of law, constitutional government etc, may not achieve every single outcome you want, but it provides many benefits. For example the proportion of men who died who died of violence in Western countries in the 20th century, including both World Wars, is less than 1%, in hunter-gatherer societies without the rule of law it ranges from 10% to 40%. (Source, Steven Pinker, The Blank Slate). Dictatorships and anarchy do not have a better track record than democracy and constitutional government, be that in protecting people’s lives or legalising gay marriage.

If you feel contempt for the rule of law, and constitutional government, then logically you are morally obliged to give up the benefits of the rule of law and consitutional government, and move to some country like Cambodia or Zimbabwae which are at least relatively devoid of such public institutions. You should refrain from using publicly-provided goods such as roads, schools, libraries, sewerage systems, etc. Don’t call on the police if you’re attacked or threatened – that’s part of the rule of law you feel contempt for.

Or argue and convince your fellow citizens into approving of same-sex marriage.

Well, it’s nice of you to admit that you have contempt for the rule of law, rather than just contempt for the law in it’s particular manifestation. So few people would make such an admission.

Institutions can be worth preserving even if they don’t create an optimal outcome in every last instance. Destroy them because you don’t win every argument, and you’ll lose a lot more than just that one argument.

Minorities, in particular, should treasure the rule of law, because the alternative to it, in the long run, is not rule by THEM. It’s rule by the majority unrestrained by the rule of law.

An eloquent description of what I feel is the current cost of prohibiting same-sex marriage, particularly the last part: living in a society that forbids same-sex marriage has always been very scary to me, for if the full power of the law can be used to actively prevent entirely positive (IMO) actions such as getting married (it has in my country, I don’t know about the USA), I can’t see why it wouldn’t be wielded against other behaviours, including some I entertain in my intimity and that I value greatly.

Brett, in order for your position to be sound, you have to give at least some sort of argument why the cost of your potential backlash is higher than the cost of the very actual contempt I and many others now feel for the rule of law, constitutional government and all these lofty institutions in a country that doesn’t allow same-sex marriage.

Note the packaging of “I don’t like this and will get very upset” as a rational and disinterested cost-benefit analysis.

Brett, you may have to come to terms with the fact that no matter what happens you are going to feel put upon by the professional feminazi hippy liberal activists. Yada yada yada, they want to shove things down YOUR throat and you just want to be left alone.

Because it’s a cost/benefit ratio.

Ok, what’s the benefit?

Moving from squat to same sex marriage? Nope, because we’re not at squat right now.

Moving from civil unions to same sex marriage? Nope, because there are other, more legitimate ways to accomplish that, that are just taking longer. But they’ll get us there inevitably.

No, the benefit is getting from civil unions to same sex marraige right away. Without the annoyance of having to actually persuade the voters to agree to it.

What’s the cost?

The cost is further damage to the already battered principles of the rule of law, and constitutional government. The cost is undermining the legitimacy of the judiciary. The cost is encouraging judges to assume power beyond what they’re actually entitled to, which they will then exercise in ways you might not approve of.

And, demonstrably, the cost is a public backlash that actually makes same sex marriage HARDER TO GET.

Doesn’t strike me as a bargain, at all.

“Wanting a loving, monogamous, long-term relationship makes me a “spoiled brat?” Ohhhkaaaay.”

no, what she said was:

“…I’m amazed that lots of us are such spoiled brats that we not only want but expect a rose garden.”

it follows that the expectation of (and, I assume, the concomitant insistence on) circumstances suitable for you and you alone, is what makes a spoiled brat. the sentence containing the description ‘loving, monogamous etc’ follows that one. pay attention. the pertinent issue is rose gardens.

(note to self: kudo’s on resisting the desire to discuss the percentage of spoiled brats resident in america.)

For better or for worse, marriage in the Western countries I know about creates some rights that cannot be created by other contracts. In at least some countries in the world, you cannot be compelled to testify against your spouse in court, and/or if you marry a foreigner your spouse can immigrate to your country and eventually obtain citizenship.

If polygamy was legalised, then as far as I can tell removing the limit on the number of people one person can marry would lead to a lot of “marriages” designed to obtain these legal benefits. For example, all the members of a criminal gang could “marry” each other so they couldn’t be required to testify against each other. There is already a series of marriages made solely for immigration purposes, it seems entirely likely that there would be a flood if polygamy was allowed.

I think it is highly unlikely that the right not to testify against your spouse or the right for your spouse to enter the country would stand against such cases as one person marrying thousands of other people to get such rights. The removal of such rights would therefore affect existing, monogamous marriages, in a way that same-sex marriage does not.

Now perhaps such rights should not exist. However, it strikes me that any proponent of polygamous marriages in countries with such rights should either:
(a) provide some argument as to why legalising polygamy would not lead to abuse of such rights; or
(b) argue also that such rights should not exist.

Tbat’s the difference between same-sex and polygamous marriages.

If all this is right, it points to another big, though overlooked part of the difficulty oppoents have with SSM: the implicit equality, not only among marriages, but within a same-sex marriage. In a same-sex marriage, both partners “wear the pants” (or the dress, as the case may be); at the very least, in a same-sex marriage with an unequal division of labor or power (as in a gay parody of a 50s marriage), the division will have been determined on some basis other than gender, which here provides no ground for distinction. This—gender equality, not merely equal protection of various sexual activities & relations—is still deeply troubling to large swaths of the country.

While I don’t think polygamy is necessarily and always abusive, I think that to the extent that it is abusive, that shouldn’t be condoned.

In general, I think that slippery-slope arguments of the form “if you favor harmless thing X then by consistency you have to favor horrible thing Y” can be countered with the reply “no, you just illustrated why I don’t have to.” (On the other hand, arguments of the form “if you insist dogmatically on sweeping principle X then you must accept horrible logical consequence Y” are often legitimate. The key thing is not to assume absolute insistence on the sweeping principle unless it is actually stated.)