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29 October 2008 @ 08:22 am
The REAL Wall of Separation  

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Let's look at that statement in bold for a moment, for a bold statement it is.

There's a tendency in recent years for American Christians, led astray by the Fundamentalists and Dominionists, to look askance at the Wall of Separation between Church and State.

The problem is that they're taking it out of historical context.

The "Establishment Clause" and the "Free Exercise Clause" are there to keep other churches from telling your church how to worship.

It was originally written to keep the peace between competing Christian sects, and to protect any dissenters from the fallout between them.

Proposition 8 supporters insist that they're protecting "Freedom of Religion", but, whether they realize it or not*, their initiative will infringe upon the freedom of at least one major Christian denomination and many smaller ones who do accept, support, and will perform same-sex marriage ceremonies.

Under current law, no church is required to perform such ceremonies.

*I am sure the more fervent Fundamentalists and Dominionists are well aware that they're imposing on other people's religious freedom, but dismiss that because tehy don't consider them to be practicing a "real" religion. I am willing to give the benefit of the doubt to the rest, however, and assume that they simply haven't viewed the question in this framework.
"And I realized I did want a drink, after all.": eriscircuit_four on October 29th, 2008 04:44 pm (UTC)
Agreed on all counts. Personally, I'm completely fine with Baptist, Catholic, etc. denominations refusing to ordain or conduct same-sex marriages. That's their right and their business -- frankly, I think that's clearly protected by the First Amendment.

And if I want to spend a weekend at Bard and Vicki Bloom's house and enter a three-way marriage before the "Powerful Goodness" of Ben Franklin's beliefs, or the Minoan gods, or the Invisible Pink Unicorn BBHH (see Fig. 1, below), that's my business.

The government's role in this should be determined by purely secular interests: who most needs financial breaks for household-building, who intends to sire or adopt children, and so forth.

But then, I think we should've given legal weight to Boston marriages ninety years ago -- anything that help a stable, long-term household unit form. Isn't that clearly in the public economic interest?

One thing that might get me in trouble is saying I'm all for civil unions, as long as they're totally equivalent to "marriage" law and remain that way. "Separate but equal" referred to a whole different time, place, and consequence. I don't care if you call it "civil wooblefutz," just make sure I can visit my partners if they get hospitalized, dammit.


Christopher Bradleycpxbrex on October 29th, 2008 07:55 pm (UTC)
I'm not comfortable with the overt homophobia of most religions, hehe. I think it is their right to be homophobic, but I'm not comfortable with it. ;)
"And I realized I did want a drink, after all."circuit_four on October 29th, 2008 08:09 pm (UTC)
Same here! But I'm overjoyed to tolerate it, and let them embarrass themselves on their own terms as part of fair public discourse. Unless they won't tolerate me back, in which case I'm overjoyed to beat their knuckles with a ruler until they get their hands off my personal business. :)
scarfman on October 29th, 2008 05:06 pm (UTC)

There's an asterisk and no footnote.

Your Obedient Serpent: facepalmathelind on October 30th, 2008 02:08 am (UTC)
There's a footnote now.
Tube: gay ottertoob on October 29th, 2008 05:52 pm (UTC)
I have always wondered why gay marriage was never taken to the Supreme Court under the freedom of religion clause.
leonard_arlotteleonard_arlotte on October 29th, 2008 07:39 pm (UTC)
Largely, I suspect, because the definition of marriage has been maintained as an instance of State Law. The reason for this is because of the Tenth Amendment to the Constitution:

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

The US Constitution does not define what marriage, so it defaults to State Law. There has been a lot of screeching for a US Constitutional Amendment to call for the definition of marriage, and I personally think that's bunk. It is no place of the US government to define what marriage is. That's a religious issue. Even Palin, who wants this amendment has stated that she has no wish to limit benefits of same-sex partners from insurance or for tax purposes... So if nothing governmental should affect the status of life-partners no matter what gender, then Government should keep its grubby mitts off what the definition is.

Tube: religiontoob on October 29th, 2008 07:48 pm (UTC)
"It is no place of the US government to define what marriage is. That's a religious issue."

But that's my whole point. It could be challenged in the Supreme Court not that the government is attempting to define marriage, but that by BANNING churches from performing gay marriages, whether in state or federal law, they're in violation of the freedom of expression clause of the Constitution. That is to say, neither the state nor the federal government has the right to tell churches they cannot marry homosexual couples.
leonard_arlotteleonard_arlotte on October 29th, 2008 07:58 pm (UTC)
The Supreme Court's primary role is to determine the constitutionality of any law, after the issue has been ruled upon by lower courts in the chain. For the Court to make a ruling, State courts have to have made a ruling, then Federal courts, then the Circuit Court of Appeals.

If nobody has appealed it up to the Supreme Court, then the Justices there can't rule on the issue.

The main reason that it hasn't been taken that high is because marriage IS a state law issue. It would be a very liberal definition to say that it is an issue of free speech. (And freedom of speech is what is protected in the first amendment, not freedom of expression)
Tube: religiontoob on October 29th, 2008 08:07 pm (UTC)
I know how the courts work, and the function of the Supreme Court, believe me. What astonishes me is that no one has appealed these state constitutional amendments limiting marriage up the court chain to the Supreme court on the basis that they are in violation of the First Amendment to the Constitution of the United States.

"It would be a very liberal definition to say that it is an issue of free speech. (And freedom of speech is what is protected in the first amendment, not freedom of expression."

By freedom of expression, I mean freedom of RELIGIOUS expression. Read yer Bill of Rights. This is the First Amendment:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

A great deal of the protections of our religious freedom lie within that bolded clause. Basically, the government is not allowed to ban any practice that is essential to the practice of your religion, and it'd be damned hard to argue rationally against the claim that marriage is central to most religions.
Terminotaur: BigBrotherterminotaur on October 29th, 2008 07:29 pm (UTC)
Usually I'm more charitable, but quite frankly the reason this is brought up is because its the most acceptable excuse. The real reasons aren't as palatable to others, or even to the speaker.

When there was the fight here (Canada) they cried the same thing. If I recall, there was specific wording the protected churches from being compelled to do or accept such weddings. I think even opinion of the court that was sought suggested that to compel churches in any way would in fact be a violation of freedom of religion. Didn't matter. They still screamed the same thing.

That's because its an excuse. I have nothing against them, but they want to hurt ME. Always try to establish your fights as defensive, not offensive after all. Again, a better thing to believe about yourself than the alternatives.

If this is a true linkage of their feelings it seems to work only if one assumes that marriage is given by the church, and thus by government giving it to a group they disapprove of (yet still claim to have nothing against personally, which some of the video from protests seems to contradict) the church is then being forced by government to legitimize sin through government broadening their marriage definition. This however does follow some sort of logic if they believe there isn't separation of church and state.

This requires a lot of selective mental editing though. Do they consider marriage by a false religions to be marriage? How could they if they don't acknowledge the religion? Yet there's no advocacy for de-legitimizing those unions. They recognize the secular role and separation from what they want here, then seem to not recognize it with gays. To borrow from Orwell, they "...forget any fact that has become inconvenient, and then, when it becomes necessary again, (to) draw it back from oblivion for just so long as it is needed”

One is led to conclude then that the problem is being mad two guys or two women are getting hitched.
leonard_arlotteleonard_arlotte on October 29th, 2008 07:44 pm (UTC)
One note about this, is that this same Amendment is frequent touted by Athiests who don't wish to have their religion infringed upon. (And yes, if they are fervent enough in their belief to attract all that press attention to themselves, and appeal to superior courts, then they are religious about it, whether or not a god is involved)

Most do not realize that the concept of 'separation of church and state' appears NOWHERE in the Constitution, and was brought up in a series of essays written by Thomas Jefferson. The line in the First Amendment states that no law shall be made respecting establishment of a religion, or prohibiting exercise of a religion. No more. This means if you don't want to take part in the Pledge of Allegiance, then you don't have to. However, this also means that you CANNOT prevent anybody else from making the pledge themselves of their own free will, just because you have your panties in a wad over three syllables.

It's stuff like this that makes me more and more convinced that we have become a Victimocracy, where the loudest whiner defines the law of the land.
Christopher Bradleycpxbrex on October 29th, 2008 07:53 pm (UTC)
Me and the li'l lady were talking just yesterday about how Prop 8, and the move to ban gay marriage generally, is obviously of a religious character - an attempt to make a feature of their specific religion part of secular law. Of course, fundies do that all the time, but this is just another case of that.

For what it's worth, I'm only against Prop 8 because of it's overtly homophobic character. I think, well, y'know, that all marriage laws are a successful attempt to put a religious institution - marriage - into secular law. I think the law should be changed so that the government is can't validate *any* relationship. Marriage is fundamentally a religious institution so I think it should be put on the other side of the wall of church and state.
leonard_arlotteleonard_arlotte on October 29th, 2008 07:59 pm (UTC)
Amen. ;)
velvetpage on October 29th, 2008 08:24 pm (UTC)
I tend to agree. If two people want to declare to the government that they cohabit and form a family unit, they should be able to do that without calling it a marriage - so long-term roommates count, as do two unmarried sisters who are raising their children in one household instead of two, just to give two asexual examples. They should then get all the rights of cohabiting couples who have had a marriage ceremony in a church or other place of worship, up to and including being declared each other's next of kin and the option to legally adopt each other's children.
Christopher Bradleycpxbrex on October 29th, 2008 09:17 pm (UTC)
Yeah, *exactly*. It's superficially easy for just about anyone to come up with scenarios like yours that, furthermore, aren't even weird or creepy. The kind of scenarios that millions of Americans face every day.
velvetpage on October 29th, 2008 09:57 pm (UTC)
I can come up with a bunch more - adult children continuing to share living space with single parents, for example. I bet every person in North America can think of a family that is one in every way except the legal way - because the legal definition of family in North America is based on marriage, whether or not it actually works like that.
Christopher Bradleycpxbrex on October 29th, 2008 10:21 pm (UTC)
I think it's fairly obvious I agree with you, yeah. And those kinds of scenarios have *always* been around, too. Adult children have long lived with their parents, families have always raised children that "weren't theirs" either because of abandonment or death of the "real parents", people who don't want to get married have long lived together for a variety of purposes. It's *always* been that way, too.

So this focus on marriage as the foundation of "the" family has always been absurd. While it's true that many families are based around a marriage, many others aren't. I suspect that in this day and age, if you count roommates and the like, marriage doesn't form the basis of most actual households.

So, to extend the rights of marriage to homosexuals isn't, IMO, much of an advance because it doesn't address the millions of households in America that marriage just doesn't play any role and the difficulties that non-married people face with stuff like insurance, schooling their children, wills and custody, and medical decisions in the case of serious injury.

Marriage, itself, is taking a largely religious tradition and giving it legal status. I think marriage should have *no legal status whatsoever*. If people want to get married, they can. But if they don't, hey, why should they be denied the rights of married people as a result?
Tube: bunny lovetoob on October 29th, 2008 10:31 pm (UTC)
Having actually been married recently, I can say that my and my husband's perspectives on it (as well as that of a lesbian acquaintance who also recently married) has changed dramatically. There's a reason why the whole separate but equal thing doesn't work here.

What we found out is that marriage is really about affirming the role of the couple in the community -- that is, it's not just about us, but about our friends and neighbors and those around us. They are exhorted to help us in supporting each other, and we are given a role, a place in the community around us. It is difficult to explain, I suppose, and more difficult to understand the importance of it until it happens. But this also explains why the anti-gay-marriage people are so adamantly against it. They don't want to feel obliged to support a marriage that they don't like or is repugnant to them. They don't want us faggers to be part of their community, especially not in a relationship that has been legitimized.
Christopher Bradleycpxbrex on October 29th, 2008 10:44 pm (UTC)
I wasn't advancing "separate by equal" as an idea. I'm saying that marriage should have no legal legitimacy, not for gays, not for straights, not for anyone. I'm doing precisely what the fundie nutjobs think that the gay marriage proponents are don't but actually aren't. I'm attacking the moral and legal basis of *all* marriages everywhere. ;)
Tube: religiontoob on October 29th, 2008 10:47 pm (UTC)
Social institution or religious institution, but not this weird hybrid we have now.
Christopher Bradleycpxbrex on October 29th, 2008 10:54 pm (UTC)
I don't think it can be a purely social institution, though. Most Americans are religious and most will insist that marriage is a religious institution (even if they are for expanding the institution to cover gay people), and it certainly is a religious institution with thousands of years of history behind it. To make marriage a purely social institution would be a violation of religious freedoms - it would be the government defining marriage for religions, which is what Athelind said initially, and he's right.

I feel the only way to cut this knot is by having marriage have no legal standing whatsoever - allowing it to be a purely religious institution without weight in law.
Tube: announcement!toob on October 29th, 2008 10:57 pm (UTC)
That's fine, as long as you still have civil unions to grant some of the crucial benefits that a marriage gives you.
Christopher Bradleycpxbrex on October 29th, 2008 11:18 pm (UTC)
Well, my *preferred* solution would be that no one would need to be in a relationship to have some of those crucial benefits (like insurance - I think everyone should have medical insurance!) and the rest would, of course, be defined in legal ways (such as the right to make decisions about another person's medical care in case of incapacitation). Oh, yeah, definitely.