Law School Discussion

Washington State Supreme Court Upholds Legislative Ban on Same-Sex Marriage

2Lacoste

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Lacoste, there is good reason that murder is against the law...no system of order would be able to survive if murder was commonplace...note how not all of the ten commandments were translated into law...anyway pretending that the blockades put in the path of the "gay marriage" movement has to do with the law and not religion is silly...when I was much younger in the early 90s (when the movement first started to form) I remember not even understanding why it was an issue...it seemed clear cut to me...the church and state are separated...the state grants the right of legal union, civil union, partnership..whatever you want to call it, it wouldn't matter much...and should there be gay people who wanted to be married they would direct their queries to the church...if the churches they would ask were anything like the churches I attended...the answer would be no...case closed...



What is a "good reason" for a law is best left up to the legislature to decide.  You and I could sit here and argue for days if tradition, religion, and/or societal utility were valid reasons for this or that policy.  But we won't agree, likely.  Let a legislature figure it out.  If you don't like the results, elect someone whose views on the topic more closely align with your own.  

Again, arguing that religion is the reason behind the our society's historical preference for heterosexual marriage is one positions.  Others might hold another.  It is entirely plausible that there are other rational grounds for such a policy.  As for the separation between church and state, I still don't see how this extends to supposed policy rationalizations stemming from moral convictions that are likely religious in character.

LeveragedSellout

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Can you offer some secular justifications for the ban on sam-sex marriage? I certainly can't think of any.

2Lacoste

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Fewer things bother me more than government's attempts to intrude into people's private lives and forcibly impose Christian morality upon them. The capacity to pursue happiness is granted by the Constitution, and as long as no one is harmed, who can legitametely(sic) dicate who may marry and who may not? I think Bush should be devoting his time to other, more compelling issues.

ok, forget that last part.



Religions other than Christianity are against homosexuality.  I fail to see how regulating this matter is "forcibly impos[ing] Christianity" on anyone.

Fine, but by banning gay marriage, the government is certainly legislating some form of morality and religion. Whether this set of morality is Christianity isn't important...we have the seperation of state and ANY church in this country (or at least we did).


We legislate morality regularly.  Should we overturn murder laws because the Ten Commandments say, "Thou Shalt Not.." ?

No, the laws against murder are based on the compelling interests of the state, homey. these just happen to coincide with the bible. Now, if we banned sex before marriage, that would be another story.

Um, says who, homey?  You assume that there is a secular basis for murder laws and assume there is a religious one for preferring heterosexual marriage.  You have no evidence to back up either.  Not to mention I take issue with your contention that any religious basis for a law makes that law unconstitutional.

Our constitution explicitly grants individuals the freedom of religion. If my rweligion endorses homosexual marriage, and provided it is completely consentual, I can't see how the text of teh constitution would oppose this. Furthermore, in contemporary Western society, states do in fact protect the seperation of church and state. As such, laws based only on religious grounds are not only unconstitutional, they also reflect ignorance in regards to the failures of church and state amalgamation in the past and present. We don't live in Afghanistan.


And if my religion is expressly against homosexuality, why should your religious views take precedence over mine?  Especially when the majority of America's moral views support my position?  "Separation of church and state" can mean many things -- foremost of which is the rule against establishing an official state religion, or discriminating against a religion.  Throwing an abstract phrase out there does not give any good reason why a law grounded in a moral conviction that has a religious basis is invalid.  If that is the case then we should probably throw out the majority of laws produced by the U.S. Congress.  The majority of America has a set of moral standards informed by their religious beliefs.  How are we to tell which laws were grounded in religious morality and which were not?

2Lacoste

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Okay, but there you admit that "Wanting to see a child raised to both biological parents may be a 'rational basis'."  That's the only thing that needs to be considered.  If other situations do not meet this goal, oh well.  They could and probably do rest on other justifications.


I said "may" implying that there is a possibility that the presence of both biological parents are in the best interest of a child. However, the are many instances in which the presence of both biological parents can be to the detriment of a child.

This stance seems to suggest that one is not truly interested in the well-being of the child or one would entertain the possibility that a child's best interest can be served through numerous living situations, not just the narrow circumstances set forth by the judge.


It doesn't matter if there are situations in which the presence of both biological parents can be a detriment to a child or not; as long as a legislature finds that the presence of both parents is something worth encouraging in a child's life, they have met the legal standard for rational basis, it seems.

BrerAnansi

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Except that those policy rationalizations are little more than stylized hyprocrisy...if there was such compelling interest in the welfare of potential children, the makeup of the average American family would be quite different...and I understand where you're going with the reasoning that a law shouldn't be overturned on its face simply because the rationale behind it may stem from religious convictions but because of the nature of the state it also has to be able to stand alone on some other rational justification...I just don't that justification in this case...

2Lacoste

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Except that those policy rationalizations are little more than stylized hyprocrisy...if there was such compelling interest in the welfare of potential children, the makeup of the average American family would be quite different...and I understand where you're going with the reasoning that a law shouldn't be overturned on its face simply because the rationale behind it may stem from religious convictions but because of the nature of the state it also has to be able to stand alone on some other rational justification...I just don't that justification in this case...


And I do, and reasonable minds will continue to disagree.  In which case this boils down to little more than a difference over policy prescription.  As such, the proper venue for this difference to be reconciled is in the elected branches of government nationwide rather than in by unelected jurists.

LeveragedSellout

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Fewer things bother me more than government's attempts to intrude into people's private lives and forcibly impose Christian morality upon them. The capacity to pursue happiness is granted by the Constitution, and as long as no one is harmed, who can legitametely(sic) dicate who may marry and who may not? I think Bush should be devoting his time to other, more compelling issues.

ok, forget that last part.



Religions other than Christianity are against homosexuality.  I fail to see how regulating this matter is "forcibly impos[ing] Christianity" on anyone.

Fine, but by banning gay marriage, the government is certainly legislating some form of morality and religion. Whether this set of morality is Christianity isn't important...we have the seperation of state and ANY church in this country (or at least we did).


We legislate morality regularly.  Should we overturn murder laws because the Ten Commandments say, "Thou Shalt Not.." ?

No, the laws against murder are based on the compelling interests of the state, homey. these just happen to coincide with the bible. Now, if we banned sex before marriage, that would be another story.

Um, says who, homey?  You assume that there is a secular basis for murder laws and assume there is a religious one for preferring heterosexual marriage.  You have no evidence to back up either.  Not to mention I take issue with your contention that any religious basis for a law makes that law unconstitutional.

Our constitution explicitly grants individuals the freedom of religion. If my rweligion endorses homosexual marriage, and provided it is completely consentual, I can't see how the text of teh constitution would oppose this. Furthermore, in contemporary Western society, states do in fact protect the seperation of church and state. As such, laws based only on religious grounds are not only unconstitutional, they also reflect ignorance in regards to the failures of church and state amalgamation in the past and present. We don't live in Afghanistan.


And if my religion is expressly against homosexuality, why should your religious views take precedence over mine?  Especially when the majority of America's moral views support my position?  "Separation of church and state" can mean many things -- foremost of which is the rule against establishing an official state religion, or discriminating against a religion.  Throwing an abstract phrase out there does not give any good reason why a law grounded in a moral conviction that has a religious basis is invalid.  If that is the case then we should probably throw out the majority of laws produced by the U.S. Congress.  The majority of America has a set of moral standards informed by their religious beliefs.  How are we to tell which laws were grounded in religious morality and which were not?

I'm amazed that you are carrying on two distinct arguments with two different people at the same time.

If you religion is focused on restricting fundamental freedoms granted by the constitution, then yes, you shouldn't be successful. If people can't pursue their own beliefs without hindering others, then they will never be comfortable in within western society. the freedom of one person to express himself is just as important as that of everyone elses' (taken striaght from my man john stuart mill)

faith2005

this is a case of people cloaking religious arguments in secular rational bases. Annabel, those are good examples that undermine the "rational" reasoning. But, the truth is that the cases will continue to go this way until there is someone brave enough to say that actually b/c people are trying to promulgate legislation especially against gay people, perhaps they should qualify as a protected class. b/c at the end of the day almost anything passes for rational basis. thats part of the irony of how the tiers are used today.

and lacoste, the arguments about legislating from the bench really boggle my mind coming from a black person. I'm not picking on you, I've heard them from other black folks, but I always ask the same question. How can you, a member of a minority, say that courts should not be empowered to protect minority rights? The majority will not protect minority rights--thats part of the mandate of the judiciary at this point. They're insulated from majority rule for that reason. I will never understand it...

LeveragedSellout

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this is a case of people cloaking religious arguments in secular rational bases. Annabel, those are good examples that undermine the "rational" reasoning. But, the truth is that the cases will continue to go this way until there is someone brave enough to say that actually b/c people are trying to promulgate legislation especially against gay people, perhaps they should qualify as a protected class. b/c at the end of the day almost anything passes for rational basis. thats part of the irony of how the tiers are used today.

and lacoste, the arguments about legislating from the bench really boggle my mind coming from a black person. I'm not picking on you, I've heard them from other black folks, but I always ask the same question. How can you, a member of a minority, say that courts should not be empowered to protect minority rights? The majority will not protect minority rights--thats part of the mandate of the judiciary at this point. They're insulated from majority rule for that reason. I will never understand it...

Well, I suspect that legislation via the bench endangers democracy. Rights will never be guaranteed until society adopts a more benevolent outlook towards civil rights. I'm not sure that overstepping the constitution is a good way of going about this.

BrerAnansi

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And if my religion is expressly against homosexuality, why should your religious views take precedence over mine?  Especially when the majority of America's moral views support my position?  "Separation of church and state" can mean many things -- foremost of which is the rule against establishing an official state religion, or discriminating against a religion.  Throwing an abstract phrase out there does not give any good reason why a law grounded in a moral conviction that has a religious basis is invalid.  If that is the case then we should probably throw out the majority of laws produced by the U.S. Congress.  The majority of America has a set of moral standards informed by their religious beliefs.  How are we to tell which laws were grounded in religious morality and which were not?

I agree with you here Lacoste...the majority of Americans have moral standards that are grounded in religious beliefs, but the majority of all Americans are not of the same faith in fact quite a few subscribe to no faith at all...faith isn't a prerequisite of this reglion-based morality...if you're a product of the society, to some extent you've absorbed its tenets...but there are certainly ways to distill a policy down to its lowest common denominator...there are many compelling rationalizations of why murder should be consider a serious and punishable offense...spanning from the religious to the philosophical to an instinctive understanding on a very base level that as living beings, life is our most precious commodity...divorce on the other hand was once not allowed, but once the church lost the power it had over government, the only compelling reason crumbled...there are other justifications for not seeking divorce as well but none on its own was compelling enough to support that decision, so divorce became legal and the other non-compelling reasons created a social taboo against divorce...like Talib asked earlier..what is the compelling non-religious rationale needed to counterbalance the religious rationale to support the ban on same-sex unions??...