This blog started out as a companion piece to my book, Musings from the Christian Left (excerpts of which can be found in the July 2004 link) and to support a planned radio show. Now, its simply a long term writing project from a Christian Left Libertarian perspective (meaning I often argue for liberty within the (Catholic) Church, rather than liberty because the church takes care of a conservative view of morality.

Friday, September 08, 2006

Gay Marriage and Activist Judges in Virginia

In July 24th's Washington Post, Andrew Cohen examines how two state Supreme Courts used the same fact and came to two very differenct conclusions in Same Coast, Different Worlds on Same Sex Marriage. Cohen is reviewing a book by Justin Rosen, which advises courts to wait for the public and legislature to catch up before granting rights to oppressed groups where they had been denied by the majority (my take, not his).

The proposed amendment to the Virginia Constitution defining marriage as between a man and a woman is on the ballot. The Republicans are attempting to prevent "activist judges" from extending marital rights to gay couples under the doctrine of equal protection. This is not a new thing for Virginia, who vigorously enforced a law banning interracial marriage until the United States Supreme Court overturned it in Loving v. Virginia. The more things change, the more they stay the same.

What the conservatives really fear, however, is a federal action extending marital rights to gays and lesbians, so in a way this amendment is whistling past the grave yard. In fact, similar recent state constitutional amendments are already under challenge in federal court, so the amendment may never make it to the voters.

Conservatives believe that it is improper for activist judges to overturn the will of majorities. However, the gist of the equal protection doctrine calls precisely for the judicial branch to check the will of majorities by protecting minority rights. Remember, the Bill of Rights was not passed as an expression of a majority, but as a condition for the ratification of the federal constitution. The Federalists did not believe a Bill of Rights was needed, just as their Republican heirs do not believe that an equal protection doctrine is needed. Polling data on the electorate indicates that if the provisions of the Bill of Rights were put to a vote they would fail (except possibly the Second Amendment).

The resentment against activist federal judges goes back even farther than the Fourteenth Amendment, which is the vehicle used to overturn state laws which persecute minorities. This debate emerged in the debate over nullification, whereby states rights advocates argued that states governments could nullify federal acts it did not agree with in their own states, particularly with regard to slavery. Now, Article IV of the U.S. Constitution is quite clear that the federal constitution and laws were the supreme law of the land, so the argument never held water. The question was finally settled at Appotomax, Virginia with the surrender of General Robert E. Lee to General Grant. The Fourteenth Amendment simply codified it. While there was a brief conservative counter-revolution under the Wilsonian Democrats, right has always been on the side of equal protection. Just as it is now.

Going back to the question of marriage, which I address in more detail on my web page at, I was taught in both Catholic High School and in marriage preparation that God made marriage a sacrament and it was between the two individuals getting married, with the minister and the state merely providing witness. It is a pity that the Commonwealth of Virginia is still in the nasty habit of arguing with God.


Blogger Charley said...

Greetings! I enjoy your comments and posting. With a Catholic education I am sure you became familiar with the arguments posed in the Catechism as to why homosexual marriage is not within the natural order, which would, if you believed them, make your argument invalid. My guess then, is that you do not believe in the teachings of the Catholic Church? In that vein, my question is: is it appropriate to give gays and lesbians equal rights in state sponosred civil unions, but allow individual churches the right to deny gays a sacramental marriage?

9:32 AM

Blogger Michael Bindner said...

I am quite aware of the Church's opinion on gay marriage. The Catholic Church's teaching is incoherent. On the one hand, they are now teaching that sex is a gift from God, rather than something shameful. On the other hand they are teaching that gays are not infererior and that they are born that way. However, they have not put two and two together.

It is actually in the interest of the Church to celebrate gay marriage, since doing so would send a signal that gay promiscuity and monogamous relationships are different (right now the implication is that they are the same, which is insane). It is similar to the church's teaching on contraception among fornicators, that it is somehow worse when fornicating to put your partner and your self at risk of a nasty disease than not doing so by using a condom. In the case of fornication, NOT using a condom is actually more sinful.

Deliberately excluding people from salvation based on who they are is the kind of sin that is going to land a lot of bishops and theologians in Hell.

2:46 PM

Blogger Michael Bindner said...

BTW, thanks for posting and for your comments on enjoying the site.

Religions would of course be able to not celebrate gay unions. It is not in their interest to do so. I suspect that the federal court will usher in gay civil marriage, however it will only be when the churches start celebrating these unions that they will gain societal acceptance, which is really the goal of the whole movement.

2:51 PM

Anonymous Anonymous said...

It is all simple. Church and state are to be separate entities. Heterosexuals can marry by the state, and not actually be recognized in the eyes of the church. Why then, is it not a legal option for gay and lesbian marriage to be acknowledged on the state level?
All religions should retain the right not to recognize a marriage which is morally incorrect within religious guidelines. No state should be able to mandate a church must acknowledge such marriages; it crushes freedom of religion.
In the same light, no religion should mandate legal rights for the state, for church and religion are to be separate. We are not Puritans, laws should not be made based on religious belief only. Judgment is God's job.
Gay and lesbian marriage should certainly be legal on a state level, but the Church must maintain the right to deny validity of such marriages.
Very simply, church and state must remain separate.

2:23 AM

Blogger Michael Bindner said...

I never said that the Church should be manadated by the state to do anything.

What I said was that it is in the Church's interest to celebrate gay weddings in order to celebrate monogamy over poligamy in the gay and lesbian community and frankly because God has shown that these relationships bear fruit, not of the biological kind but in heroic acts of love.

Earlier this year I was looking through my college ethics book. This is the book from not just any ethics course, but one from a Catholic minor seminary and it was August Fagothy's Right and Reason, which is the standard in the Catholic Chruch for training future priests - not some work of liberal fluff. If you have access to a Catholic library you should read it sometimes. It quite coherently lays out the natural law perspective from both sides. However, the argument for the non-traditional side is so convincing that the author must rely on the advantage of theism in addition to natural reasoning. In other words, when having an original thought, consult the official pronouncements of the church. What claptrap. Its not natural law if your conclusion is the Pope said so. Natural law which relies on formalism is simply an attempt at academic window dressing for existing prejudice. In other words, its PR, or to be more to the point - lying.

9:14 PM

Anonymous Anonymous said...

A facts based argument :

Christian Right Wrong On Gay Marriage in Massachusetts: Mass Likely To Retain Lowest Divorce Rate Spot In 2005, Gay Marriage Hostile States Lag.

In short :

Massacusetts has had legal same sex marriage for 2 years now and in that period has had a 10% drop in its divorce rate. Massachusetts will retain its spot in 2005 as the US state with the lowest divorce rate in the nation.

Meanwhile, states which are most opposed to same sex marriage, those which have past state constitutional amendments against same sex marriage, have the worst divorce rate performance of any group - in terms of position on same sex marriage - in the nation.

Those states may have actually seen a net rise in divorce in that same period, and among the group are most of the states that have seen a clear rise in divorce in 2004 and 2005.

Facts matter.

11:52 AM

Blogger Michael Bindner said...

Thank you for that.

4:03 PM

Blogger Bill Garnett said...

The Tyranny of the Majority

Polls are indicating that the marriage amendment will pass.

I agree – and I’ll too bet that the amendment will pass.

The majority rules.

But there is something called “the tyranny of the majority”.

Jefferson, Washington, Patrick Henry, all lived in a time and social context and I doubt they would have voted against this amendment either. However, were these men living today and in today’s context, and with the intelligence, and enlightened points of view they possessed, I wonder that they wouldn’t support gay rights? I wonder that they wouldn’t support the reality and the science about our homosexual citizens? I wonder that they wouldn’t see the more basic concepts of liberty, freedom, equality, to be inclusive of this minority that exists within our midst?

And what now for our fellow citizens who are homosexual? Who have endured the years of discrimination, bias, and prejudice that were the result of ignorance and fear? Are they to disappear back into the anonymity of their closeted lives? To try and blend in unnoticed into the general population?

And what permission will this win give to those who may now act out their fear and their ignorance against the gays in their communities?

I, for one, won’t see this as a great victory for the best traditions of our heritage. I won’t see this as a victory for democracy.

1:10 PM

Blogger Michael Bindner said...

I fear you are right about the passage of the amendment, although I hope not. If the War in Iraq goes badly the right-wingnuts may stay home, although the amendment may bring them out to vote Allen back in as well. Pity.

This is why we have a federal judiciary and a 14th Amendment. Scalia said as much in his dissent on the Texas sodomy case, that without criminalizing the sexual content of the relationship, there is no justification for denying gay marriage on equal protection grounds. When this happens, expect a backlash and an another attempt to enact another U.S. constitutional amendment to define marriage. If it doesn't pass in the Congress, they may have a convention to do it (and heaven knows what else). Then again, they may want that.

3:18 PM


Post a Comment

Links to this post:

Create a Link

<< Home