Same-sex marriage coming to Utah

[Jeff Lebowski]

Essay by Michael Austin.

http://bycommonconsent.com/2015/06/2...ood-thing-too/

You’ve probably heard by now that the Supreme Court last Friday struck down state bans on same-sex marriage, granting same-sex couples the right to marry in all 50 states. This is completely true. And you may also have heard that this represents a victory of something called “secularism” over something called “religious freedom.” This is completely false.

It is not wrong to say that secularism won. It most certainly did. But secularism did not, and cannot win victories “over” religious freedom for the simple fact that secularism is the same thing as religious freedom. For the freedom to worship according the the dictates of one’s own conscience can only exist in any meaningful way in a secular society.

Let me dwell on this for a minute, since it sounds counterintuitive. For many religious people, “secularism” is a hiss and a by-word that means something like “a society that hates and persecutes religious people by feeding them to the lions or making them bake cakes for people they don’t approve of.” Secularism, then, becomes something like “official state atheism.”

But this is not what secularism means. A secular government, by definition, treats all forms of belief, including unbelief, exactly the same. This is what James Madison argued for so forcefully in his majestic 1785 treatise, “Memorial and Remonstrance against Religious Assessment.” Madison believed that the government should always adopt a posture of strict non-cognizance towards all religious beliefs. Another name for this is “the separation of church and state.”

The debate over same-sex marriage has always been framed–by both sides–as a debate between secularism and religion. The debate has been excruciatingly complicated by the fact that “marriage” has always had both religious and secular aspects. Weddings are often performed in churches. Ministers have the authority to conduct legally binding marriage ceremonies.

This makes marriage one of the few areas in which the lines between civil and ecclesiastical authority remain blurred. Marriage is both a civil contract and a religious commitment, and both are often created at the same time and in the same ceremony. This, I suspect, is why so many religious people feel the recent Supreme Court decision as a slap in the face. But this need not be the case. While the civil and religious aspects of marriage are deeply connected in our lived experience, only the former have any business on a Supreme Court docket.

Those who criticize the government for “turning its back on God’s laws” misunderstand the function of law in a secular state. And those who complain that Friday’s decision “destroys the sanctity of marriage” concede far more power to the state than should ever be conceded. Such statements only make sense if we agree that sanctification–making things sacred–is a legitimate function of government. And once we concede this, we are no longer living in a state that is either secular or free.

Religious people of all stripes–but especially members of a minority religion that a lot of people still consider weird–should not be afraid to live in a secular society. We should, though, be deeply concerned about living in the other kind.

[Uncle Ted]

I support gay marriage and I agree that it is a much more true claim that polygamy is "traditional marriage" than the form of marriage we have today in the U.S. is "traditional marriage." Also, I'm fine with legalizing polygamy. I pretty much always have been.

If polygamy was legalized then I guess it would allow mormons get back to the doctrine... Monogamy is just the current policy but polygamy is doctrine. Well, as long as section 132 was still around and considered revelation.

[SeattleUte]

If polygamy was legalized then I guess it would allow mormons get back to the doctrine... Monogamy is just the current policy but polygamy is doctrine. Well, as long as section 132 was still around and considered revelation.

It would be funny to see LDS reaction if polygamy were legalized. But I'm not sure I follow that Kennedy's opinion supports legalizing polygamy.

[PaloAltoCougar]

It would be funny to see LDS reaction if polygamy were legalized. But I'm not sure I follow that Kennedy's opinion supports legalizing polygamy.

When Prop. 22 came up many years ago, my HP Group colleagues didn't buy my theory that one reason the Church wanted us to support 22 was that it didn't want to expand the definition of marriage lest it lead to the legalization of polygamy. Its legalization would certainly create a dilemma where none currently exists. But, as you note, Kennedy's opinion doesn't necessarily lead to such a result. He carefully writes of "two persons" or "two consenting adults" at least a couple of dozen times throughout, and never anything more expansive than that.

[Dr. Heinz Doofenshmirtz]

When Prop. 22 came up many years ago, my HP Group colleagues didn't buy my theory that one reason the Church wanted us to support 22 was that it didn't want to expand the definition of marriage lest it lead to the legalization of polygamy. Its legalization would certainly create a dilemma where none currently exists. But, as you note, Kennedy's opinion doesn't necessarily lead to such a result. He carefully writes of "two persons" or "two consenting adults" at least a couple of dozen times throughout, and never anything more expansive than that.

Yes, the opinion is careful to specify that it is limited to same-sex COUPLES. But the Court's holding wasn't really a matter of pure equal protection, in which case you could distinguish SSM from polygamy. Kennedy, as he is wont to do, based the same-sex marriage right on things like the ability of people to "define and express their identity," to enjoy "individual autonomy," to "shape an individual's destiny," and to "find . . . freedoms, such as expression, intimacy, and spirituality." If those are really the grounds for the right to same-sex marriage under the Constitution, how could you deny the right of three or more to be married? Doesn't that limit someone's ability to define and express his or her identity? Doesn't it limit individual autonomy? Doesn't it keep an individual from shaping his or her destiny, and exploring the full extent of expression, intimacy and spirituality?

[Dwight Schr-ute]

Sitting in the Bishop's office with the YM yesterday going over the Mormon Newsroom piece, the Bishop did make the comment "I've already read an Op Ed piece on how this decision could open the door to legalize polygamy pretty quickly. So...slippery slope." I may have audibly snorted at that concern.

[Eddie]

I've long thought that polygamy should be legalized.

Why is it OK for some guy to have kids with multiple women while not making any long-term commitment to any of them, but it isn't OK for another guy to have kids with multiple women and wanting to make a long-term commitment to all of them?

It seems like the greatest argument I hear against polygamy is that there is a lot of child sexual abuse/exploitation that takes place. I tend to believe that if you legalized polygamy and had everyone getting marriage licenses, etc., and took the relationships out of the shadows - you would have an easier time discovering and fighting those abusive relationships.

If you really believe that consenting adults should be able to form whatever legal relationships they want to, then what's the hangup with polygamy?

[byu71]

If you really believe that consenting adults should be able to form whatever legal relationships they want to, then what's the hangup with polygamy?

Perhaps because it goes against what is considered tradtional marriage???

[Dwight Schr-ute]

Whoa! Pump the brakes progmo's!

http://www.sixteensmallstones.org/ld...-sex-marriage/

[Eddie]

Perhaps because it goes against what is considered tradtional marriage???

I hear what you're saying - but read this part just one more time...

If you really believe that consenting adults should be able to form whatever legal relationships they want to, then what's the hangup with polygamy?

Maybe it isn't clear, but I'm primarily referring to everyone who thinks gay marriage should be OK. Those are the folks saying that consenting adults should be able to determine what their family is. I can understand why the traditional marriage folks would disagree. They disagree with gay marriage too.

I just have a hard time figuring out where the gay marriage folks draw the line. If gay marriage is OK, then why isn't polygamy? Same principle of consenting adults entering into a relationship that makes them happy. Gay marriage folks get upset about someone limiting the definition of what is a family/marriage. So do they set limits themselves? Or do they also support polygamy?

[byu71]

Whoa! Pump the brakes progmo's!

http://www.sixteensmallstones.org/ld...-sex-marriage/

He may have not said it exactly, but the churches actions make it very clear to me that it is OK for members to support same sex marriage.

[byu71]

I just have a hard time figuring out where the gay marriage folks draw the line. If gay marriage is OK, then why isn't polygamy? Same principle of consenting adults entering into a relationship that makes them happy. Gay marriage folks get upset about someone limiting the definition of what is a family/marriage. So do they set limits themselves? Or do they also support polygamy?

You are making an assumption that the pro gay marriage folks are open minded and have no prejudice's. Wrong,they too have their concept of what is normal, what is right and what is acceptable. Too them same sex marriage is normal, marriage to more than one person is not.

They also will gleefully mock those who do not accept morality on their terms. Of course I am speaking in generalities.

[cowboy]

lol @ cowboy!

lol @ DDD relying on SU to bail him out of a debate!

It's not even overruling the national majority, which at last count was around 60% in favor of legalizing same sex marriage, IIRC.
I wonder where all these cries of hijacking democracy were when a multinational multibillion dollar organization flexed its financial muscle in a local election to overrule that state's majority. Which is the bigger threat to democracy?

Try again. While the organization's efforts may have swayed the majority, they certainly didn't overrule it. The law was enacted by a majority of the voters, which closely mirrored the polls at the time that showed the majority in favor of the law. I'd hardly call that a threat to democracy, but since you brought it up, which is the bigger threat to democracy, a large organization campaigning to sway voters' opinions, or a company firing an employee because of the ballot position he supported?

...But, as you note, Kennedy's opinion doesn't necessarily lead to such a result. He carefully writes of "two persons" or "two consenting adults" at least a couple of dozen times throughout, and never anything more expansive than that.

This seems to reinforce the idea that the majority was carefully imposing their own morality with their decision. Either legislating morality is acceptable or it isn't. Gay marriage advocates have been banging the secular drum for years, but many seem fine with legislating their morality that aligns with their belief. Can you think of a compelling legal reason that gay marriage should be protected but polygamy shouldn't?

What's ironic and funny about the amateur Constitutional scholars is that the first principle of Constitutional scholarship is that the Supreme Court says what the Constitution is, i.e., what it says. So, they're saying that the majority aren't correctly saying what the Constitution says but by definition that's what the Supreme Court just did. What a waste of words to try to argue with a majority Supreme Court opinion.

Tell that to President Obama, who seemed fine with dressing down the court in his State of the Union Address when they ruled against him re: campaign finance. What is the purpose of majority and dissenting opinions if they are not to be read, discussed, and debated? Should discussion be limited to only the elite few who have taken a Constitutional Law class (which apparently qualifies them to be Constitutional scholars, as opposed to the ignorant masses whose legal education is limited to a civics class) and have them lecture the rest of us uneducated, unwashed proletariat on what we should think about the Court's decisions? If the Court decides what the Constitution means (we all know what it says) and their should be no further argument, what is the purpose of a dissenting opinion? What is the purpose of opinions at all? If the Court's ruling were the final word for all time, we would be in a lot of trouble, as there are certainly some decisions that we all are glad were reversed.

And what's with all the name-calling? Anyone who disagrees with the decision is now an "ameteur Constitutional scholar"? If we read the dissent and find it compelling, is our opinion any less valid than those who read the majority opinion and agree? This is a landmark case that will be discussed for decades. I'm not sure why you and others who agree with the ruling are so afraid of debating the decision that you immediately start any comment with an attempt to discredit anyone who disagrees by labeling them an amateur scholar.

You can lament all you want that five individuals are revoking the will of the majority in some states, but if you believe (i) that we need a constitution that is the highest law of the land and trumps all conflicting laws, (ii) that sometimes in a given state or county or city the majority can oppress minorities, and (iii) one of the functions of the Constitution is to protect minorities from majority oppression, from time to time you're going to have five individuals overruling the will of the majority in some states. But I don't know a better way; does anyone here?

I agree, this is the best system. It's not perfect, but it's far better than any system in any other country.

I understand original intent as a principle of self-restraint on the part of these all powerful justices (original intent isn't a credible doctrine because the framers were anything other than flawed human beings themselves; they were probably less equipped than this court with over 200 additional years of history and science, to decide civil liberties disputes). But the Constitution can be read in about as many ways as can scripture. If a Supreme Court decision is made by extending a general precept drawn by precedent from the Constitution in order to fulfill what seems to the Court the right thing to do and the consensus about what's right among Americans, that is a form of judicial restraint. And whether the amateur Constitutional scholars agree with it or not, it's the way civil liberties issues have been decided now for many years, since at least the fifties, and stare decisis seems to me to play much the same role as original intent. If this decision is much about what seemed to the Court the right thing to do and the consensus about what's right among Americans, that is more damning of the religious and others who opposed gay civil rights than if it were based on any original intent.

If the Court's only purpose is to determine what is right or fair, what is the purpose of the Constitution at all? Every opinion is based upon the Constitution. Life isn't fair, and neither is our government. The fair thing to do is grant all people the right to marry whomever they chose. According to Roberts, while that might be the fair thing to do, that decision was not the Court's to make. I tend to agree, but as an amateur Constitutional scholar, what do I know?

[byu71]

lol @ DDD relying on SU to bail him out of a debate!


Try again. While the organization's efforts may have swayed the majority, they certainly didn't overrule it. The law was enacted by a majority of the voters, which closely mirrored the polls at the time that showed the majority in favor of the law. I'd hardly call that a threat to democracy, but since you brought it up, which is the bigger threat to democracy, a large organization campaigning to sway voters' opinions, or a company firing an employee because of the ballot position he supported?

This seems to reinforce the idea that the majority was carefully imposing their own morality with their decision. Either legislating morality is acceptable or it isn't. Gay marriage advocates have been banging the secular drum for years, but many seem fine with legislating their morality that aligns with their belief. Can you think of a compelling legal reason that gay marriage should be protected but polygamy shouldn't?


Tell that to President Obama, who seemed fine with dressing down the court in his State of the Union Address when they ruled against him re: campaign finance. What is the purpose of majority and dissenting opinions if they are not to be read, discussed, and debated? Should discussion be limited to only the elite few who have taken a Constitutional Law class (which apparently qualifies them to be Constitutional scholars, as opposed to the ignorant masses whose legal education is limited to a civics class) and have them lecture the rest of us uneducated, unwashed proletariat on what we should think about the Court's decisions? If the Court decides what the Constitution means (we all know what it says) and their should be no further argument, what is the purpose of a dissenting opinion? What is the purpose of opinions at all? If the Court's ruling were the final word for all time, we would be in a lot of trouble, as there are certainly some decisions that we all are glad were reversed.

And what's with all the name-calling? Anyone who disagrees with the decision is now an "ameteur Constitutional scholar"? If we read the dissent and find it compelling, is our opinion any less valid than those who read the majority opinion and agree? This is a landmark case that will be discussed for decades. I'm not sure why you and others who agree with the ruling are so afraid of debating the decision that you immediately start any comment with an attempt to discredit anyone who disagrees by labeling them an amateur scholar.



I agree, this is the best system. It's not perfect, but it's far better than any system in any other country.


If the Court's only purpose is to determine what is right or fair, what is the purpose of the Constitution at all? Every opinion is based upon the Constitution. Life isn't fair, and neither is our government. The fair thing to do is grant all people the right to marry whomever they chose. According to Roberts, while that might be the fair thing to do, that decision was not the Court's to make. I tend to agree, but as an amateur Constitutional scholar, what do I know?

Well said. I also commend you for taking the time to thoroughly answer the questions.

I anticipate the smart ass comment in regards to me agreeing with you. I also think I know who will make it.

[SeattleUte]

This seems to reinforce the idea that the majority was carefully imposing their own morality with their decision. Either legislating morality is acceptable or it isn't. Gay marriage advocates have been banging the secular drum for years, but many seem fine with legislating their morality that aligns with their belief. Can you think of a compelling legal reason that gay marriage should be protected but polygamy shouldn't?

Tell that to President Obama, who seemed fine with dressing down the court in his State of the Union Address when they ruled against him re: campaign finance. What is the purpose of majority and dissenting opinions if they are not to be read, discussed, and debated? Should discussion be limited to only the elite few who have taken a Constitutional Law class (which apparently qualifies them to be Constitutional scholars, as opposed to the ignorant masses whose legal education is limited to a civics class) and have them lecture the rest of us uneducated, unwashed proletariat on what we should think about the Court's decisions? If the Court decides what the Constitution means (we all know what it says) and their should be no further argument, what is the purpose of a dissenting opinion? What is the purpose of opinions at all? If the Court's ruling were the final word for all time, we would be in a lot of trouble, as there are certainly some decisions that we all are glad were reversed.

Just about anyone celebrating original intent strict constructionism in criticizing this decision is employing a legal doctrine to support their subjective view of morality. Most of these people are active in a Christian sect. Scalia, a lifelong, active Catholic, is thoroughly hypocritical and disingenuous in this sense. I confess: my conviction about the immorality of opposing same sex marriage very much clouds my own constitutional thinking. What's ironic about the complaints about subversion of the democratic process is that the justices are also sensitive to the political will. Does anyone believe this would have happened had it not been for the sudden reverse tide of public opinion following Proposition 8? This dispute is all about morality and our nation's consensus about morality.

I think Scalia's dissent was mostly about Scalia. Probably the same is true about the other dissenters. With all the marriages going on everywhere now, if stare decises should ever prevent modification of a Supreme Court's statement of what the law is, it is here. The dissents are like counting angels on the head of a pin. Pointless mental masturbation.

And what's with all the name-calling? Anyone who disagrees with the decision is now an "ameteur Constitutional scholar"? If we read the dissent and find it compelling, is our opinion any less valid than those who read the majority opinion and agree? This is a landmark case that will be discussed for decades. I'm not sure why you and others who agree with the ruling are so afraid of debating the decision that you immediately start any comment with an attempt to discredit anyone who disagrees by labeling them an amateur scholar.

lol. Have you read Scalia's dissent? He started the name calling.

If the Court's only purpose is to determine what is right or fair, what is the purpose of the Constitution at all? Every opinion is based upon the Constitution. Life isn't fair, and neither is our government. The fair thing to do is grant all people the right to marry whomever they chose. According to Roberts, while that might be the fair thing to do, that decision was not the Court's to make. I tend to agree, but as an amateur Constitutional scholar, what do I know?

I hate to break this terrible truth to you. This is how judges usually decide cases. It's about what they think is right, not about elegant legal constructs. In my opinion, this is the hardest, most terrible thing about being a lawyer.