Ok, so the passage of Amendment 1 in the NC State House, which would constitutionally ban gay marriage in North Carolina, will inevitably be brought up all year since the vote is not until May. Therefore, I am going to address this nonsense now and not bring it up again unless absolutely necessary. The simple truth is that this would be a total non-issue if the Federal Constitution were enforced as it is actually written (a tall order these days, I know, but let’s see if I can even get the Young Democrats on board with this one).
To the progressives: good job. You get just about every other issue wrong, but for some reason you decided to side with individual liberty and equal justice this time and you deserve credit. I would like to point out that the libertarians deserve credit as well for siding with individual liberty and equal justice consistently.
Now, to my conservative friends: Get your story straight! When it is convenient the social conservatives proclaim unabashed support for and fidelity to the Constitution, but when it violates their pretty little sensibilities to allow a same sex couple to get married, they have shown themselves perfectly willing to throw the Constitution under the bus. If you support the Constitution, you support all of it, all the time, not just when it lines up with your personal tastes.
I direct you to Article IV, Section I. It states that, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State”. For those of you who have a hard time deciphering the law jargon, this basically means that each state must recognize the legitimacy of the legal actions of another state. This is mostly seen by having driver’s licenses issued in one state be valid in another state, but marriage certificates are likewise legal actions that have to be recognized by all other states. Therefore, if one state issues a marriage license to a gay couple, and North Carolina refuses to recognize it because of this Amendment, then North Carolina is in violation of the Federal Constitution. In short, this whole issue should be a seen as a charade because whenever a gay couple receives a marriage license from Vermont, for example, North Carolina must recognize it or be in violation of the Federal Constitution.
Now, social conservatives, if you still oppose gay marriage because you believe that your version of a biblical argument supersedes the Constitution, I beg you to accept that, while Judeo-Christian morality may define your personal life, it cannot be, and should not be, forcibly imposed on your fellow citizens through the government.
You may very well think that marriage is a sacred institution that will be defiled by the inclusion of homosexuals, but here are three things that you might want to consider. First, and most simply, the Christian arguments that you employ in your crusade against gay marriage also tell us that it is not up to humanity to decide what constitutes a sacred union; it’s up to Him. Second, no one is forcing your church to recognize or perform these marriages; only the government has to recognize them. This would simply mean that homosexual couples would enjoy the same spousal rights (filing taxes as a couple, having an easier time adopting children out of a broken foster care system, etc.) as straight couples. And third, you do not want the government to have the ability to legislate morality. Think about the implications of giving the government that power. Would you be so thrilled if a hypothetical movement, which thought that limiting the global population through forced abortion was a moral cause, gained strength, and they used the power that you want to give the government to enforce their moral code? Absolutely not! When citizens give the government the power to enforce morality, it can be used against them when the government changes its view of what is moral behavior.
1) All laws are the legislation of morality. We believe stealing is wrong, so we make it illegal. Etc, etc, etc. Enforcing morality is what governments do. We're not debating about whether governments should enforce morality or not, we're debating which morals they should enforce and which morals they shouldn't.
2) Therefore, everyone who is trying to pass laws is trying to impose their morality on other people.
3) States don't have to recognize all forms of legal certification between states. For example, your teaching certification doesn't automatically carry over between states. Your law license doesn't automatically carry over between states. Your 15-year old learner's driving permit doesn't carry over between states. There are many other examples I can give, but you get the picture.
4) If getting married is a human right, opponents of Proposition One who argue that we shouldn't vote on someone's rights need to answer the following:
Where do 'rights' come from?
If rights come from God, then you need to explain how you know what rights we have and what rights we don't have, and how God communicated this knowledge to you.
If rights come from the government, then people already voted on your rights when they voted to adopt the Constitution and the Bill of Rights. Therefore, voting on someone's rights is perfectly acceptable within a democratic system.
With respect to:
1) That is simply not correct. We have laws against stealing because theft violates the rights of the one robbed, not because God said, "Thou shalt not steal," or because we think it is wrong. If we, as a society, think it's wrong to have multiple children (as China does) does the state, in a free society, have the power to say you cannot have multiple children? Absolutely not. Also to give government the power to define what is moral is to give it the power to change that definition at their whim.
2) Based off #1, so incorrect for the same reasons.
And why is it bad to violate the rights of the person who was robbed? You're still making a moral judgment here. It's unavoidable.
Government doesn't define what is moral. I never said that it did. But government enforces someone's morality anytime a law is enforced.
No, you can interpret it that way if you want, but theft violates a person's basic right to property. That is why it is illegal, and that is why the violator should be punished after they are given due process. Also, let's say that you were right. Then to make the moral decision, they must necessarily define morality.
And why is it bad to violate someone's right to property? You are making a moral judgment here. Also, why should they be given due process? That is another moral judgment. You can't escape making moral judgments.
No, it is bad because it violates the rights that define a free society. The only possible moral judgement I can find is that a free society is a good thing. Even if some moral decision is inevitable (which I'm not certain it is, but just to keep the debate from dying I'll go with it), my version of it does not force a restricting version of morality on any other individual. It reduces the ability of the government to impose a personal code of morality of the individual. It also would be a moral code of equal justice.
However, let's not get away from the point of the blog. If it were true that some moral decision were necessary, isn't it better to have a moral code of Equal Justice and Protection, not a religious code, which not all of the citizenry subscribes to? Banning gay marriage necessarily denies them that justice and protection.
"bad because it violates the rights…"
There you go again. You are making a judgment that violating rights is bad. That is a moral judgment. That is a moral decision.
Your second paragraph is virtually conceding this point and all other points I have made in this subthread, and now you're just arguing about what morals to enforce by law and what morals to leave up to the people to decide for themselves. This is a debate of degrees, not kinds. You're legislating your personal version of morality, just like everyone else.
And that's not a bad thing. The democratic process exists so that people with competing ideas as to what is best for the country can have their ideas compete through a fair process in order to become law. That's what democracy is for. It's what it's good at. It's why it works. Legislating morality isn't antithetical to democracy. Legislating morality IS democracy.
No, I quite clearly said I was going along with it to keep the debate from grinding to a halt… I like debating, the second paragraph was hypothetical. Still hypothetical, if it were a matter of degree, most of those decisions must be left to the individual.
"…most of those decisions must be left to the individual."
Which is another moral judgment: that the maximum amount of freedom is good.
3) Whether or not Article IV, Section I is applicable in the situations you bring up here (and if applicable, whether or not it is enforced), is irrelevant to whether or not it is applicable and enforced with regard to marriage. Unless you are going to argue that 2 wrongs make a right, or that because it always has been a certain way that that way is right. If this section of the Constitution is applicable, but not enforced, that should be remedied, but the fact remains that the state must recognize the "public acts, records and judicial proceedings" of all other states. Marriage is a judicial proceeding (that's why you have to go to the courthouse), so it counts as something that must be recognized. I am devoting a blog post to this particular violation of the Constitution, not others, because this violates a person’s inalienable right to pursue happiness. If Article IV, Section I is not enforced in other areas, then it should be, but that is a fight for another day. I doubt there has ever been a US Supreme Court case on this (I did not find one on a quick Google search), but I will get back to you if I find one.
The way you are interpreting Article IV essentially holds that states must enforce each others' laws. This is both unworkable and defeats the concept of having states in the first place, as the Supreme Court has ruled on several occasions, such as McElmoyle v. Cohen (1839).
In another Article IV case in 1939, Pacific Employers Insurance v. Industrial Accident, the Supreme Court ruled that "in the case of statutes…we think the conclusion is unavoidable that the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events."
They do not have to enforce each other's laws, but they do have to recognize the legitimacy of their legal documents. McElmoyle v. Cohen simply said that a state courts decision does not mandate another state court to use the precedent. Pacific Employers Insurance v. Industrial Accident says that California and Massachusettes did not have to enact the same worker's compensation laws, which they do not, but they do have to recognize the legitimacy of the law. Likewise they must recognize the legitimacy of marriages done in other states. Neither of those cases relate to the legitimacy of legal documents.
Actually, courts have held that states do not have to recognize marriages concluded in other states. Courts upheld the right of states to not recognize interracial marriage back when interracial marriage was illegal in some states but not others. Article IV's Full Faith and Credit clause is actually a very weak provision compared to the Equal Protection clause of the 14th amendment.
The Equal Protection Clause also makes those laws invalid. I was going to bring up Equal Protection as a reason to have Equal Protection of homosexual and heterosexual couples with regard to their right to pursue happiness, but there is some controversy about whether that amendment should be interpreted as written or as intended, so I avoided it.
"The Pursuit of Happiness" is not a part of the U.S. Constitution and has no legal force in American law.
Not entirely true, or at least it should not be… the Constitution should be interpretted through the lens of the Declaration. In that context, it the 9th Amendment does guarantee it, or should since we have established that this is an opinion blog of how it should be interpretted in a free society.
4) Your basic rights come from your humanity. They include your right to life, liberty, property, and the pursuit of happiness. The state has no power to infringe on those rights, unless an individual violates the rights of another person and receives due process (again this assumes you want to live in a free society). Getting married does not violate any person’s rights, so the state has no power to punish a gay couple for doing so.
That doesn't answer the question. If our rights are derived from being human, how do we know what our basic rights are?
Saying that our rights come from ourselves just brings up a new dilemma: Either our rights are immutable, in which case you have to explain what rights we have and how you know this (especially since different thinkers have come up with different sets of often conflicting and contradictory allegedly inalienable rights) or we define our own rights, in which case each of us can grant ourselves whatever rights we want and the concept no longer has any meaning.
Well… I said I see our basic rights as "life, liberty, property, and the pursuit of happiness". That's how our founders saw them, as well as most Classical Liberals.
Well… I said that I see our basic rights are "life, liberty, property, and the pursuit of happiness". That is what our founders thought, as well as what most Classical Liberals think. The state has no more right to limit a homosexual couple's right to pursue happiness by legally forbiding their marriage than it has a right to limit a heterosexual couple's right to pursue happiness by legally forbiding their marriage.
But that's just it. Different thinkers have come up with widely different views of what our basic rights are. John Locke posited rights to life, liberty and property. Thomas Jefferson differed, arguing for life, liberty and happiness. The French Declaration of the Rights of Man and the Citizen instead argued for liberty, property, security and resistance to oppression. More recently Michael Walzer argued that we have rights only to life and liberty. John Rawls only recognized rights to liberty and property. The Universal Declaration of Human Rights recognized rights to freedom of speech, freedom from want, freedom from fear and freedom of belief. Now we hear lots of talk about how every human being has a right to health care, education and anything else anyone wants to have.
So, how do you know that our rights are life, liberty, property and the pursuit of happiness? What is your basis for these assertions? How do you know what rights we have and what rights we don't have?
Well, this is an opinion blog. My opinion is that it is Life, Liberty, Property, and the Pursuit of Happiness. Resistance to Oppression is not so much a right as a responsibility… the denial of any of the above rights is necessarily oppression, in my opinion. The right to pursue happiness has been denied to homosexual couples by legally banning their marriage; therefore these bans must be resisted.
Are you seriously suggesting that you have no more solid a basis for the rights that seem to form the foundation for your worldview than your own unsupported opinion?
You brought up that many ideas of what our basic rights are are contradictory and far from homogenous, so I told you what I thought they were. Would you like the list of readings I have gone through to reach that conclusion… Ayn Ran, John Locke, Ron Paul, Friedrich Hayek, George Orwell, Thomas Jefferson, James Madison, the Declaration of Independence, the Constitution, as well as an strong disagreement with the Manifesto of the Communist Party, the policies of totalitarian regimes that we have seen from history destroy freedom and lives.
I've read most of those authors and heard Ron Paul speak in person. And all of them make the same mistake that you do: They simply assert that we have natural inalienable rights without providing any evidence or arguments to back up their claims.
Simply asserting something does not make it true. Basing your personal beliefs around something is one thing, but laws and policies affect us all. If you're going to construct public policy based on that idea then you need to be able to ground your arguments in a firmer foundation than personal perception.
You are, in fact, treading down the same road as the religious conservatives that you denounce in your article. You write that "while Judeo-Christian morality may define your personal life, it cannot be, and should not be, forcibly imposed on your fellow citizens through the government." Yet by failing to defend your concept of natural rights as anything more than an opinion, you are also making them an article of faith. And by crafting public policy based on articles of faith, you are imposing your morality on other people through the government. Just like everybody else.
I think we are reaching a standstill. I am willing to look at whether freedom being good is a moral judgement imposed on others, but I see it more as a historical fact that people want to be and should be free. Even if it were a moral choice, it is a moral decision not to impose a stringent code of personal morality on others through the coersion of the state. Which gets me back to my original point that we cannot impose a Judeo-Christian moral code on homosexual couples just because it is the code we live by in our personal lives ( a choice made, in part, because we were not coerced by government to live by a different one) and their lifestyles do not necessarily line up with it.