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.

Tuesday, April 07, 2009

Gay Marriage in Iowa

Equal protection is equal protection. When legislating against an identifiable group, such as homosexuals, one must have a rational basis for doing so. This is true in state and federal law (and a portent for things to come). As Justice Scalia pointed out in his dissent in Lawrence v. Texas, as soon as private consenual sodomy is regarded as essentially private and beyond the reach of legislation, there is not rational basis for denying gays the right to marry a same sex partner.

While religious leaders talk about the role of procreation in marriage, the ability to procreate is not a requirement in either civil law or canon law to marry - (Canon law requires only the ability to function - although it still regards sodomy as disordered). Of course, the very concept of disorder requires that there be a natural order outside of human experience to damage (since God cannot be damaged). If the natural order is considered a sophistry then the disorder argument carries no weight, especially given the biological evidence that homosexuality is simply a natural variation in the species.

If inability to procreate is not a bar to marriage among heterosexuals, it cannot be so for homosexuals. Additionally, marriage is not required for procreation, although it is helpful in providing a stable environment for children. Of course, the stable environment argument favors gay marriage, given that gay parents often have custody of their children.

The key role of marriage is to separate individuals from their families of origin, creating a new family. As Jesus said, when someone is married, they leave their families and cling to their spouse, and the two will become one flesh. Practically, that means that they are legally the same person, excluding the family of origin from any power formerly held, including the right to inherit property, make decisions in illness and make funereal arrangements.

The question of marriage did not come up when there were no end of life decisions to be made. People got sick and either died or got better. Now they may or may not linger and may or may not recover. There is visitation to be decided - often with estranged families excluding a person who is essentially a spouse. While civil unions are an attempt to rectify this, they are but an act of political correctness designed not to offend the sensibilities of the religious (who have not conducted themselves toward homosexuals in anyway so as to deserve an opinion on the matter).

The key legal question is this: what compelling right do families of homosexuals have in maintain an interest in the lives of their gay family members vis a vis the member's spouse when compared to those of heterosexual family members vis a vis their spouses? In other words, why do gay spouses deserve less respect than straight spouses?Unless you can find an overwhelming rational basis for a difference, the Iowa Supreme Court ruled correctly - as will the U.S. Supreme Court when they finally see this issue.

Ultimately, Churches will see that they must celebrate gay weddings. There are two reasons. The first is that it gives them a platform to preach monogamy - a platform they do not have now by declaring all homosexual activity sinful. The second is because the wedding ceremony is a comfort for the family, not just the couple. When the famillies are rightly seen as the beneficiaries of these rites, they will begin demanding that they occur and they will be performed.

3 Comments:

Blogger Vincetastic said...

“Marriage” is just a man made term and carries very little weight these days. Look at the high divorce rate and the level of infidelity, what does marriage really stand for. Whether you call it Gay Marriage or Civil Union, the basic premise is that every person should have equal rights. It’s good to see that some states are progressing, I made a list on my site of the states I think will legalize Gay Marriage first: http://www.toptentopten.com/topten/first+states+that+will+legalize+gay+marriage

7:54 PM

 
Blogger Michael Bindner said...

Since the California decision, there has been a federal suit filed that cites prior SCOTUS opinions that malice is not a reason to deny rights to homosexuals. This principle was used to overturn a state constitutional amendment in Colorado and will likely be affirmed in this case (althought the Human Rights Campaign is holding its breath until either Scalia or Thomas die or they can find out that Kennedy, Alito or Roberts is on their side).

On the basis of precedent to date, gay marriage seems like a sure thing in the Courts. Time will tell.

Of course, there are some who maintain that the people should decide. That can't be right, since it would put the will of the majority above the rights of the individual. That is simply not how we do things in the United States. Rights are inherent, not legislated or granted - including the right to marry who you want.

12:49 PM

 
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