For anyone with some time, this is good reading. It’s the final text from the latest Proposition 8 hearing which Judge Walker overturned today. I’ve gotten to about page 10 but have to stop, although the whole thing is fascinating.

I am partial to saying that neither side has a strong “constitutional” argument and the entire matter is social and has nothing to do with law. The “same-sex marriage is constitutionally protected” argument is a huge stretch, and the reality of the matter still stands that the Constitution doesn’t grant the government power to marry individuals in the first place, much less decide who gets to marry. Marriage and “due process” are not the same. All the government need do is recognize all those that want to be married as married as it was done in Common Law days, and we’d be done with this whole argument. An excerpt I have read on early American marriage portrays the very system that we should return to:

The Dutch and Germans performed the wedding ceremony in their native languages, employing customs from their homelands. The Quakers held weddings in their meetinghouses. There, couples could marry themselves, often by reciting vows they devised, without a clergyman. For many years, Anglican traditions, based on the Book of Common Prayer, prevailed in the South.

Just looking at the signers of the Declaration of Independence would tell you that they wouldn’t agree on just one way to get married.

Marriage has been a pain in the ass in Western Culture since the Council of Trent, when society switched from Common Law marriages to religious marriages that had to be performed by a Roman Catholic priest. Ever since then, minority groups have fought their governments against marriage laws, eg. after the English Marriage Act of 1753 people would elope from Ireland to Scotland to marry under Scottish law. Is there any reason to think that after 400 years our governments would be able to pass a law that everyone could agree with? Not from what I’ve seen.

Additionally, people tend to forget that the Constitution is a legal document, not a moral document. America’s moral document is the Declaration of Independence in which the preamble famously states:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Moral advocates on either side tend to think that both documents are the same, but in reality the Constitution only provides safeguards against the government interfering with people’s lives, not promoting or deciding what is Life, Liberty, and Happiness. If people were honest about the Constitutional argument, they would be arguing that the government has no right to decide who gets married, not whether one group is protected or not.

Pro-8 defendants originally argued about some moral superiority of heterosexual relationships, but this had no legal standing. The legal argument they’ve conjured up regard to statistics about raising children in heterosexual relationships, but I find it hard to believe that this information is useful considering the tiny number of same sex couples with children. The oddest argument I’ve noticed is the advancement of America through procreation. The last time I checked America had a growing population and suddenly allowing same-sex couples to marry wouldn’t jeopardize that growth rate unless these are the same people that think legalizing heroin would create an entire country of drug addicts, but that’s just conjecture on my part.

Con-8 proponents argue about the happiness they would gain from social acceptance and the freedom to choose who to marry. That sounds like something out of the Declaration to me. Arguing that the 14th Amendment protects the choice of whom to marry isn’t exactly the same argument I would make since the Constitution doesn’t grant anyone the right to marry, but having the right to live your life how you want is more American sounding than what the Pro-8 people are selling and that’s what counts to me.

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