Strengthening Constitutional Self-Government

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Kmiec on the federal marriage amendment

Noted legal scholar Douglas Kmiec adds his voice to the chorus of concern about the threat that approval of gay marriage poses to religious liberty.

Discussions - 4 Comments

Unfortunately, you have to register or something to get the link. But here are some facts we have to consider:
1. There’s no way in hell that any federal constitutional amendment is going to be ratified.
2. It makes all the difference in the world whether same-sex marriages comes (if it does) legislatively or judicially. If it’s a matter of legislative will, then Americans will still have the right to disagree reasonably over it. And what legislatures do they can easily undo if citizens are persuaded otherwise. If it comes as a matter of constitutional right, then those opposed to it will be regarded in the same way as racists--intolerantly. Teachers who speak against it will be fired etc.--there is a genuine religious liberty threat there. Maggie G. is not at all over-the-top with her concerns. For those interested, see my article on judicial restraint in the next SOCIETY. (As Paul knows, it has something to offend everyone.

I’m perplexed by this concern over gay marriage. Where is the threat? Homosexuals are and will always be a small segment of the population. Gay sex isn’t mandatory. If the government "allows" gay marriage it won’t increase it, any more than it has alcoholism or smoking or skateboarding.
As for the rights of religions, no one is forcing any certain church to marry any two particular people. Why would it be different for two of them of the same sex? The church has the right to refuse services. FORBIDDING gay marriage infringes on church’s rights.
You all should consider that there are more than a few closeted gays who have been forced to marry straight women to maintain appearances. You are
forcing them into decent households and making them raise our children by forbidding gay marriage. Just sayin’.

Peter is right. If courts establish a new orthodoxy, then those who disagree will be marginalized in a variety of ways. Consider the ways that the Boy Scouts, for example, are being cut out of United Way campaigns and deprived of access to public schools in certain districts.

Gallagher also mentions a parade of horribles in her piece, beginning with licensing (like Catholic Social Services in Boston) and proceeding to freedom of speech cases, where moral disapproval of homosexuality could become unutterable if sexual harassment rules were interpreted in a particular way.

If you want more, read Gallagher’s article, linked in a post cited above, Kmiec’s op-ed, the Becket Fund papers, or these three pieces, written by yours truly. And I haven’t even gotten to Stanley Kurtz’s corpus yet.

DanielK -- this has been a recurring topic on NLT. Here’s what I said last year on this topic:

"Comment 13 by Dain

Marriage is not a private act, it is a social act. As far as I know, all societies have heterosexual marriage to regulate 1) reproduction, 2) inheritance, 3) gender relations, and 4) socialization of the young. Except for #2, gay marriage accomplishes none of this.

Another point is that marriage has always required social is not a natural right. Currently we define marriage as the monogamous union of one man and one woman, but if gay marriage is allowed then this (seemingly arbitrary) standard comes into question. I see no way to legitimately force other rules (e.g., age-restrictions, kin-restrictions, number restrictions) once gay marriage is allowed.

So you see, marriage has always been a discriminatory social institution, and it had better remain so for the sake of our society. What this is really about is forcing society (made up of millions of unwilling people) to accept and even celebrate what is essentially a dysfunctional (and perhaps pathological) sexual orientation. Can anyone "out there" explain to me why homosexuality is either desireable or "natural."

9/8/2005 8:02 AM

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