(cross posted at freeforall)
I voted against North Carolina’s Amendment One last week during early voting, and did so for the following basic reasons:
- I think amendments to a state Constitution should be undertaken sparingly, and believe further that they should secure rights for persons and not limit them.
- Because N.C. already has a law that bans same-sex marriage, I consider Amendment One to be mean spirited, piling on, and an attempt to introduce yet another wedge issue into the campaign.
- Amendment One is broadly written, and its passage would likely do more than limit marriage options. For example, it could invalidate certain domestic partner unions that enable persons to get health insurance, etc. Duke University has been a leader in providing such benefits for its employees, and has taken a stand against the Amendment. The passage of Amendment One would likely have unintended consequences beyond the stated goal of proponents-to ban gay marriage-a goal that is already secured by state law as I noted (there are dueling commercials in the State saying this point is either true, or false).
I voted against the amendment for all these reasons.
More broadly, there has been a great deal of discussion within churches and other faith communities about Amendment One. I am a Christian, and within Christian communities there is a great deal of divergent opinion about the Amendment, with most mainline denominations urging defeat, while many independent, evangelical congregations and leaders urging passage. I grew up in a fairly conservative Church background, and rejected faith as a teenager. In college I discovered a faith of my own influenced positively by my upbringing, and have been working to understand what being a Christian means ever since (I understand this to be a lifelong enterprise). I have changed my views on many things, and getting to know many gay and lesbian folks in school and work has changed my understanding on myriad issues.
My experience in faith and politics has been that as my faith grew, I became more liberal in most of my political views, even as I was part of Churches that tended to be more conservative politically. I was often the “radical liberal” at Church or other Christian groups, and sometimes the ‘fish out of water Christian’ in some of the politically liberal circles in which I ran, though this dichotomy has seemed to lessen over time. I have experienced a fair amount of angst and pain over the years related to fellow Christians saying something along the lines of “how could you be for (fill in the blank) and be a Christian?” So, I try hard not to put this back onto others. I am a Christian, and I can tell you my views, but I am quite cautious about claiming to know the ‘Christian view’ on most issues.
I know there are some Christians who believe that voting for Amendment One is required for those who believe, in one sense as an act of defending God. I respect their sincerity, but disagree. My feeling is that first, God doesn’t need to be defended. Second, the clincher for me is the lack of love and dual spirit of pride and condemnation that I hear in religious appeals to vote for Amendment One; this just doesn’t represent my understanding of how we Christians are supposed to treat our neighbors, and I will not be a part of it.
Update: I realize this post doesn’t make clear that I also support marriage equality for same sex couples. However, that seems very far away for N.C. at this point.
The wages of living constitutionalism: Why do people feel a need for constitutional amendments to backstop statutes? Because they never know when some judge is going to decide that the statute is unconstitutional, and if an amendment doesn’t totally preclude that, it does make it more difficult.
I’m perfectly fine with the policy argument against banning same sex marriage, but if you think the ban is a good idea, a constitutional amendment is an obvious step, and the misdeeds of judges are why.
Brett,
I’ll view this as one of your serious posts, worthy of a serious reply.
Last I heard, no Constitution was ever written in machine language. Lawyer language is usually more precise than good ole English, but that isn’t saying much. The contexts in which language is embedded-and thus the meanings of language-change.
How would you implement “dead constitutionalism” to get around this problem? Only try to interpret language in the context of the time it was written? That won’t work very well-history is an interpretive science, and our past constantly changes with new discoveries and new interpretation. Only interpret the Constitutional language that resembles machine code? Hokay. That doesn’t leave much, other than the President must be at least 35 years old, and the Vice-President is in charge of his own impeachment.
Any critique of living Constitutionalism must offer a replacement theory. It’s not enough to argue that such a Constitution puts a fair amount of power in the hands of judges; one must also argue that there is a practical way to avoid this. The ball is in your court.
Oh, and by the way. Most Southern state constitutions are incredibly lengthy and detailed. This leads to godawful problems of Constitutional interpretation, because one piece of such a detailed Constitution is bound to contradict another. The drafters did not take this approach because they were afraid of the courts. Quite the contrary! The drafters were the plantocrats, afraid of the legislature which might try to do something popular one day that just might happen to hurt the interests of said plantocrats. The courts-or at least the higher courts-they trusted to do their bidding.
Another reason people do it is to make it harder for democracy to work. Often to change a constitution back to what it was, you’ll need a supermajority, even if you didn’t need one to pass the (usually stupid) amendment in the first place.
So, it’s for people who are afraid of majority rule. Here in California for example, our electorate is much older and more conservative than the population, and I believe also whiter, and afraid of the future. They want to get their ideas set in stone because they know they can’t win actual arguments.
It won’t work in the long run.
You know, I just looked it up and I think I was wrong, in CA you can re-amend the state Constitution just as easily as you could hinky it up in the first place. For some reason, I thought it was harder to get something off of it than to put it on.
I guess it just feels that way.
I have to say I see Brett’s point. Notwithstanding that, the wording of the proposed amendment is not merely careless, it’s AWFUL. The current law defines marriage. If the objective is to backstop that law with a constitutional clause, then the constitutional wording should mirror the plain law.
This, on the other hand, VASTLY expands the intent of the original law to include other types of domestic partnerships. The opponents of same-sex marriage in various states around the country have made the case that domestic partnerships can fulfill most, if not all, the business objectives of “marriage,” and that LGBT opposition to “domestic partnerships” as a substitute is more psychological rather than real. This proposed amendment, OTOH, hugely constrains the business aspects of domestic partnerships, which is not exactly what “marriage” is all about.
Awful, perhaps, but I doubt careless. Many evil goals are disguised as “unintended consequences” in politics, and it’s hardly unheard of for the leadership of a cause to attempt more extreme goals than the median supporter is in favor of, by means of “poor drafting”.
If the intent were simply to prevent judicial activism (translation: decisions you don’t agree with), there were other phrasings that would have been more appropriate. How about this: “Nothing in this constitution shall require the state of North Carolina to recognize any form of marriage other than that between one man and one woman”. The current phrasing constrains the legislature in such a way that even if the overwhelming majority of our elected representatives, responding to the people, felt it right and just to enact civil unions, they would have to first go through the whole amendment process again. That is rather more than forestalling the courts. What is it about this issue that our normal republican form of government cannot handle? Especially given that all legal aspects of marriage were enacted by the legislature in the first place?
Don: Very thoughtful, heartfelt post — thanks.
Heaven forfend you vote against Amendment One because it discriminates against a class of citizen based on ignorant religious belief.
There is no coherent argument against same-sex marriage that does not invoke religious belief;therefore it is flatly unconsitutional per the First Amendment. All the paeans to “religious liberty” boil down to the claimants desire to use their religious liberty to discriminate against others.
Your religious rights end at the tip of your nose; you should not be able to write religious bigotry into a secular constitution. If it upsets your religious fee fees, tough titties. The rest of us have to put up with your christopathic rantings about every other damn thing.
You have the absolute right to practice your religion. NOTHING gives you any right to be free of criticism of that practice, and NOTHING gives you the right to enact that practice into law.
You can stand up and proclaim that gays are sinners, evil and contrary to nature, based on the selective reading of a few of the phrases in your holy book (do you like shrimp? Wear cotton-poly blends? ) all of that.
What you canNOT do is enact laws that apply to everyone based on that bigotry.
Don’t like gay marriage? Don’t have one.
Banning same-sex marriage would not be an act of imposing religious belief or establishing a religion by the state. It would be an act of imposing a moral standard in law. The law does that all the time, in banning theft, murder, adultery (in some states), and much else. Where one’s moral beliefs come from varies from person to person. A lot find it in their religion, but that does not mean imposing one’s religion on others.
I would be inclined to look elsewhere for the constitutional arguments against banning same-sex marriage.
The last line is absolutely correct in spirit, as well as pithy in expression.
In the cases you mention there is at least the idea of preventing an identifiable harm. In the case of gay marriage the opponents have not been able to identify any actual harm that would result. In Romer v Evans Anthony Kennedy said:
“Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.”
Of course Colorado’s Amendment 2 was much broader but I think the animus is the same.
Yes, it’s based on some degree of animus, and irrational preferences. Wipe the law books of statutes similarly based on animus or irrational preferences, and the landfills would be bulging. And a lot of the laws taken off the books would be beloved of liberals. Yes, I’d love to live in a country where you had to identify a genuine harm to somebody, a harm THEY thought was a harm, to ban something.
Know where that country is? ‘Cause it ain’t this one.
So, I’m there with the complaint, but let’s not pretend that animus and irrationality distinguishes this law from other you’d uphold. It doesn’t, it’s just a matter of whose irrational tastes are being offended. And if that’s enough reason to ban something, I don’t see why the majority’s tastes don’t win.
John, did you really intend to compare gays to thieves and murderers? Your distinction between moral standards and religious beliefs is a bit shaky. We generally don’t pass laws to impose moral standards, and when we do the results usually are not good. The NC Constitution begins with a statement of rights, Article I. For example, there is “We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.” We should enact laws to protect such rights. Murder conflicts with right to life, theft with the enjoyment of the fruits of labor, and so on. All of our laws should have such rational basis, not “I think it is icky” or “it makes the sky god angry”. How can Amendment I, as actually phrased, possibly fit in with Article I. It does not provide rights to anyone, but prevents the state from enacting certain legislation based only on the type of persons involved.
It is a FACT that there are same-sex couples in this state who, exercising their right to pursuit of happiness, have chosen to form permanent bonds that THEY regard as familial, even if you might not. Is is a fact that some of these are married in other jurisdictions. They aren’t going to break up just because someone passes a law or amends the constitution. They aren’t going to marry someone of the opposite sex just because you think they should or because you have a book that you say says they should. How, exactly, do you think such households should be treated under state law? Exactly which benefits of “domestic legal union” do you think they should not have, and why?
Well, the Apostle Peter did mention busybodies alongside murderers, thieves and evildoers. (I Peter 4:15, KJV)
My dispute was not with a defence of gay marriage. I live in Ontario, Canada, where it is legal and open and not really seriously disputed in the mainstream (and not by me, anyway). My point was that lots of laws are based on moral precepts of the legislators who adopted them. Ideally there would be some demonstrable harm beyond immorality to the prohibitions, but I doubt that same-sex marriage is the only example of a morality-enforcing law with no clear harm to others (except the ‘bad example’ to others, as if people can be converted to homosexuality).
But not all those morality-enforcing laws are based on morality derived from religion. Morality is logically unrelated to religion. (Otherwise a statement like ‘God is good’ has no meaning.) So imposing morality, even a religious-based morality, by legislation is not imposing one’s religious beliefs. I don’t think a constitutional challenge to the North Carolina measure, or to opposite-sex marriage legislation, will succeed on the ‘no established religion’ clause of the US Constitution.
OTOH seven provincial appeal courts in Canada ruled that the ‘equal benefit of law’ clause of our Constitution required the recognition of same-sex marriages. I prefer our Constitution to yours (for a number of reasons.) Of course we had the benefit of yours and almost 200 years of observation of it and others in writing ours…
You left “because I don’t wish to discriminate against a group of my fellow citizens” off your list.
I was thinking/hoping this was the point of the entire post. Perhaps I gave too much nuance and missed being clearer.
@John G.: Why don’t we stop trying to impose moral standards in law? I would support a rights-based legal system over a morality-based one any day. Crimes that have real, identifiable, actually-harmed victims would remain crimes because they infringe on people’s rights. Crimes that have no actual victims, like the crime of selling/buying weed or prostitution, would cease to be crimes. To the extent the state was in the relationship-sanctioning business at all, which I believe it should not be, any consenting adults would be allowed to enter into whatever relationship they wished. Churches would be free to recognize or not recognize whatever relationships they wanted to, as they are now. Problem solved.
My dispute was not with a defence of gay marriage. I live in Ontario, Canada, where it is legal and open and not really seriously disputed in the mainstream (and not by me, anyway). My point was that lots of laws are based on moral precepts of the legislators who adopted them. Ideally there would be some demonstrable harm beyond immorality to the prohibitions, but I doubt that same-sex marriage is the only example of a morality-enforcing law with no clear harm to others (except the ‘bad example’ to others, as if people can be converted to homosexuality).
But not all those morality-enforcing laws are based on morality derived from religion. Morality is logically unrelated to religion. (Otherwise a statement like ‘God is good’ has no meaning.) So imposing morality, even a religious-based morality, by legislation is not imposing one’s religious beliefs. I don’t think a constitutional challenge to the North Carolina measure, or to opposite-sex marriage legislation, will succeed on the ‘no established religion’ clause of the US Constitution.
OTOH seven provincial appeal courts in Canada ruled that the ‘equal benefit of law’ clause of our Constitution required the recognition of same-sex marriages. I prefer our Constitution to yours (for a number of reasons.) Of course we had the benefit of yours and almost 200 years of observation of it and others in writing ours… (I refer only to our Charter of Rights and Freedoms, which dates from 1982, and whose 30th anniversary our current federal government has not bothered to notice. We had a constitution from the creation of Canada in 1867 - and even that one has a number of provisions drafted expressly to reverse perceived problems in the American one.)
What struck me about this was the way that the measure seems to strike at almost everyone in a close relationship that isn’t husband-with-subservient-wife-and-children. Considering that people in such relationships tend to be less well off than the ones who can afford the traditional trappings, the amendment bears a strong kinship to the ongoing effort of catholic bishops to rebuke nuns and the laity for caring more about serving the poor than about condemning the licentious.
“Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.”
I can see how somebody might oppose this amendment, but I’m quite at a loss as to where you’re getting the “husband with subservient wife and children” bit from. Probably from someplace that stinky and dark, is my guess.
Help me understand! If you look at the origin of creation there were man and woman. Why are we trying to change something that God instituted from the beginning? It is a terrible thing to fall into the hands of an angry God. On May 8, vote to keep the Amendment One as is-marriage relationship defined as between man and woman. Respectfully submitted!
There is nothing “respectful” about your comment, Rose. It is disrespectful in the extreme. You make a mockery of that word.
“You shall love the Lord your God with all your heart, with all your soul, with all your mind and with all your strength - this is the first and greatest commandment. AND THE SECOND IS LIKE IT: You shall love your neighbor as yourself. Upon these two commandments are based all of the law and the prophets.”
It’s funny how some folks conveniently forget clear and unambiguous passages like this one when they try to justify discrimination based on “God’s will.” And by “funny” I of course mean “unspeakably sad”.
And Rose? Should you decide to get cute and post the two Biblical passages that condemn homosexuality I’ll ask you to refer to the actual words of Christ, who had nothing whatsoever to say about the “sin” of homosexuality, and everything to say about loving thy neighbor.
“God hath shown me that I shall not call ANY man common or unclean.”
I am so sick of hearing GOD said this and GOD did that. Your words have no merit and your point is moot to someone who doesn’t worship or serve the same god that you do or someone who does not believe the bible to be true. What’s next? Atheists can’t be married because their ceremony won’t be sanctioned by your god? And by the way, I’m not gay and I’m not atheist. However, I believe in individual freedoms and if this amendment passes, people are going to get way more than they bargained for.
“If you look at the origin of creation there were man and woman.” What, 13.2 billion years ago? Or even Day 1 of Genesis 1? Sexually differentiated animals and humans come in together on Day 6, as God’s creativity unfolds. There’s no marriage in Genesis 1: dimorphism is shared with animals and birds and fishes, and they don’t marry (well, apart from a few birds like albatrosses). You can read patriarchal marriage in to the incompatible and older account in Genesis 2; but the marriage there is clearly bound up with the male dominance. Does your rather thin-skinned God also object to women having the vote and writing on blogs?