Thursday, September 11, 2008

America’s Founding Faiths – Supporting the Right of Same-Sex Couples to Marry

California’s Episcopal Bishops yesterday issued a joint statement supporting the right of same-sex couples to full human rights and equality under law – including the right to marry:

"We believe that continued access to civil marriage for all, regardless of sexual orientation, is consistent with the best principles of our constitutional rights. We believe that this continued access promotes Jesus' ethic of love, giving, and hope.”

The California Bishops’ statement cites Resolution A095 from the Episcopal Church’s 75th General Convention in 2006, in which their denomination resolved to “reaffirm the Episcopal Church's historical support of gay and lesbian persons as children of God and entitled to full civil rights,” and to oppose “any state or federal constitutional amendment that prohibits same-sex civil marriage or civil unions.”

Today’s statement from California’s Episcopal Bishops acknowledges some controversy within the Episcopal communion regarding whether same-sex couples are entitled to marry in their churches:

“As bishops, we are not of one mind regarding how our Church’s clergy should participate with the State in same-sex marriage. Some of us believe it is appropriate to permit our clergy to officiate at such marriages and pronounce blessings over the union; others of us believe that we should await consent of our General Convention before permitting such actions.”


“Nevertheless,” the Bishops continue, “we are adamant that justice demands that same-sex civil marriage continue in our state and advocate voting ‘No’ on Proposition 8,” a ballot measure that would deprive California’s gay and lesbian citizens of civil rights, by revoking their legal right to marry.

It should be apparent that there’s an important distinction to be drawn here, between civil marriage and religious marriage. America’s Episcopalians recognize that even if same-sex couples cannot yet marry in Episcopal churches, their own denomination’s rules regarding religious marriage should not be imposed by law on the rest of us. That is the kind of advanced thinking reflected in the First Amendment’s religion clauses.

I think it’s fair to say that America’s “founding faiths” are coming to agree that legal discrimination against that gay and lesbian couples is wrong, and that that marriage is a fundamental civil right that cannot in good conscience be withheld from them on the basis of any denomination’s religious rules regarding marriage.

Readers of this blog know, of course, that Episcopal churches represented the dominant faith in America’s founding era only in the Southern colonies, from Virginia down. What about the Standing Order of Congregationalist churches in New England?

New England’s oldest Protestant churches today stand firmly on the side of legal equality for gay and lesbian couples – including their right to marry. The 1996 General Assembly of the Unitarian Universalist Association of Congregations, whose membership includes the First Parish Church in Plymouth (gathered 1606), the First Church in Salem (gathered 1629), the First Church in Boston (gathered 1630), and the United First Parish Church in Quincy (gathered 1636), declared its unequivocal “support of legal recognition for marriage between members of the same sex.” Thus, the Quincy church, where President John Adams, First Lady Abigail Adams, President John Quincy Adams, and First Lady Louisa Catherine Adams worshipped – and where they rest in peace to this day – has declared the congregation’s support for “the right of same-sex couples to marry and to receive all the rights and benefits of that civil institution under the laws of the Commonwealth.”

These are churches where gay and lesbian couples may marry in a religious ceremony.

Readers of this blog know too, though, that New England’s Congregationalist churches suffered a schism in the early 1800s, dividing by 1820 between the liberal Unitarian churches, on the one hand, and the orthodox Trinitarian Congregationalists, on the other. Thus, in 1801 the theologically conservative members of the First Church in Plymouth left that congregation to form the Church of the Pilgrimage next door (or across the street, depending on how you look at it). Today it’s a member of the United Church of Christ, as are most of the Congregationalist churches that stood on the “orthodox” side of the great Unitarian controversy.

What about those orthodox churches? In 2005 the General Synod of the United Church of Christ resolved “that the Twenty-fifth General Synod of the United Church of Christ affirms equal marriage rights for couples regardless of gender and declares that the government should not interfere with couples regardless of gender who choose to marry and share fully and equally in the rights, responsibilities and commitment of legally recognized marriage.”

I’ve spoken with the minister of the Church of the Pilgrimage in Plymouth. He assures me that same-sex couples are welcome to marry in his church.

Nor are Episcopalians and Congregationalists alone. Quakers too have spoken strongly in favor of marriage equality. When I helped to file a brief in the California Supreme Court’s, Marriage Cases, the Executive Committee of the American Friends Service Committee joined the Unitarian Universalist Association, the United Church of Christ, and the Union for Reform Judaism (the largest movement in American Judaism), in supporting legal recognition of same-sex couples’ right to marry.

None of this is intended to suggest that gay or lesbian couples could marry in any of these churches in the eighteenth or nineteenth century. Rather, the relatively recent movement of America’s founding faiths to recognize gay and lesbian couples’ right to marry is part of the overall progressive character of American religion.

As the United First Parish Church of Quincy, in its 2004 resolution opposing efforts to amend the Massachusetts constitution explained:

“This historic church, the congregation of John Adams, author of the Constitution of the Commonwealth of Massachusetts, has a tradition of concern for individual rights and protection of the minority, extending from the early days of the Commonwealth through John Adams to the present day. Thus, while we cannot know Adams' opinion on the present matters, we are moved from that tradition to speak publicly on present efforts to amend the Constitution of the Commonwealth.”

83 comments:

Lori Stokes said...

Great post, Eric; it is very interesting that the hard-line, original Puritan churches of New England, which could not and would not go along with the much more humanistic Unitarians, have evolved to the point where they have welcomed not only gay worshippers but just about everyone, in almost every situation of life, while the Unitarians have yet do so so.

Eric Alan Isaacson said...

Hi Lori,

I'm not sure what you mean when you say that New England's original Puritan churches welcome "not only gay worshippers but just about everyone, in almost every situation of life, while the Unitarians have yet to do so."

Those original Puritan churches have for the most affiliated themselves with the Unitarian Universalist Association of Congregations, and identify themselves as Unitarian churches.

It is fascinating, I agree, that the churches of the Pilgrims and the Puritans are among the American nation's most open and liberal -- both in theology and in social attitudes.

Brad Hart said...

A very interesting and well-researched post! An excellent way to make your rookie debut here at American Creation =).

Dan Atkinson said...

Now you have all gone too far. Using the founding legacy to somehow prove that homosexuality is ok has revealed the true nature of this blog.

Jesus Christ is clear on this issue. Just read the Bible. Homosexuality is the premiere abomination in America today, and the California decision is only furthering our nation's dark future. Is it any wonder that we have so many problems in America today?

The Episcopal Chuch is showing its fruit. As Jesus stated, "Beware of false prophets...but by their fruits ye shall know them." This is their fruit, and it is a terrible day for them and America.

I cannot believe that you really believe that the founding fathers would be ok with gay marriage. The MOST CERTAINLY WOULD NOT be ok with it. Mr. Isaacson's lack of historical knowledge, combined with his desire to twist history to fit his own agenda is staggering. This is HANDS DOWN the worst example of historical and liberal nonsense that I have ever seen on this blog!

Dan Atkinson said...

Oh, and by the way, I don't appreciate all the references to me on this blog (especially by Tom Van Dyke). I've kept my mouth shut for a while and just quietly have watched from the back.

Brad Hart said...

Uh...I thought Jerry Falwell was dead.

Chino Blanco said...

Ron Prentice Gets Rich Fighting Gay Marriage

Ron Prentice is CEO of the California Family Council and Chairman of ProtectMarriage.com, the committee behind Prop 8 (the folks working to ban gay marriage in California).

Ron is set to be be honored at the Values Voter Summit 2008 (September 12-14) with Focus on the Family Action's Family Champion Award.

Justin McLachlan has broken a major story in the Proposition 8 battle: California Family Council contributions have mostly been spent on the generous salaries that Ron pays himself and his staff.

So far, there’ve been about a dozen news and blog pieces that have appeared online referencing Justin’s research into Ron Prentice and his shady management of donor funds.

Folks volunteering for and making contributions to the “Yes on 8″ campaign should be aware that the operatives running the show have a track record of using contributions to generously reward themselves.

Just in case the HTML doesn't disply properly, here's a direct link:

http://justinmclachlan.com/08/46/california-family-council-money

Check it out.

Lori Stokes said...

I'm no expert, but there is a difference between UU-affiliated churches and the United Church of Christ; it is the latter to which most of the congregations that split and did not join Unitarians back in the 1800s belong.

Lori Stokes said...

It's also clear that Eric never stated that the Founders would have approved of homosexuality; this complaint is specious. The point of the post is to show an evolution of the policy of churches that were extant during the Founding period (and well before).

Jonathan Rowe said...

"Jesus Christ is clear on this issue."

Actually no Jesus Christ never said one thing about homosexuality. For the NT's take on homosexuality you have to go to Paul.

Eric Alan Isaacson said...
This comment has been removed by the author.
Eric Alan Isaacson said...

I have to agree with Jonathan that from the gospels it appears Jesus said nothing at all about homosexuality - - unless, of course, you think he meant to include our gay and lesbian brothers and sisters when he told us to love our neighbors and not to judge others.

Lori, you are correct that after the early nineteenth-century schism among New England's Congregationalist churches, the "liberal" congregations have wound up in the Unitarian Universalist Association of Congregations, while most of the "orthodox" congregations are members of the United Church of Christ. But membership in the two denominations is by no means exclusive. You'll find that the Federated Church of Orleans, Massachusetts (gathered 1646) is affiliated with both denominations.

Phil Johnson said...

.
heh heh heh

Tom Van Dyke said...

I'm glad you've been catching my slags on you, Mr. Atkinson. I've been hoping to snap you out of it.

You thump the Bible, yet show your ignorance of it at every turn, in this case saying Jesus is "clear" on homosexuality when He doesn't mention it at all.

One day you'll realize that your guns-a-blazin' style hurts your cause rather than furthers it. There are good arguments for many of your various positions, but you keep making bad ones instead.

Dan Atkinson said...

I meant say God (since Jesus is my God I get words mixed up). God makes it clear in the Bible that homosexuals are living in a state of terrible abomination. Of this there is no dispute.

Still, nobody has addressed my comments on the fact that the founding fathers would NEVER EVER accept homosexuality. Gays used to be put to death for these actions.

Tom, my arguments do not hurt my case. The problem is that you have let intellectual arrogance plague your mind. I choose the simple truths of God any day over the ridiculous argumens of "scholars."

Tom Van Dyke said...

That said, there is a problem with all this, especially in using the words "faith" and "church" interchangeably. What we have here is sectarianism, no more or less, and sectarianism is what the Founders liked least of all.

An irony would be that George Washington's own church, the Falls Church, has separated from the Episcopalian church on just this issue. What are we to make of that?

In my view, nothing. Sectarian views, squabbles, or "progress"---especially today's---are not relevant in the context of the Founding.

Eric Alan Isaacson said...

Dan thinks his positions justified by the fact that "people used to be put to death . . . . "

People have been put to death for many religious offenses - - even in America. Heck, being a Quaker in Massachusetts could get you hanged on Boston Common in the mid 1600s.

I have to say that I, for one, am pleased that attitudes like that can change over time. I think considerable progress has been made, and is being made.

I'm thankful that in Boston Quakers no longer need fear for their lives, and that at the First Church in Boston (gathered 1630) a gay or lesbian couple today can marry.

Jonathan Rowe said...

Eric is exactly right. The Massachussetts Body of Liberties -- the 1641 Puritan Legal Code -- gave the death penalty for among other things worshipping false gods, practicing witchcraft and blasphemy (and homosexuality and adultery).

The section of blasphemy is particularly instructive because of its Trinitarian intimations.

(Lev. 24. 15,16.)
If any person shall Blaspheme the name of god, the father, Sonne or Holie Ghost, with direct, expresse, presumptuous or high handed blasphemie, or shall curse god in the like manner, he shall be put to death.


Given the way John Adams bitterly mocked the Trinity in his private letters he would have been executed by his Puritan ancestors for "high handed blasphemie" just like the homosexuals and Quakers.

"The Trinity was carried in a general council by one vote against a quaternity; the Virgin Mary lost an equality with the Father, Son, and Spirit only by a single suffrage."

-- John Adams to Benjamin Rush, June 12, 1812.

And:

"An incarnate God!!! An eternal, self-existent, omnipresent omniscient Author of this stupendous Universe, suffering on a Cross!!! My Soul starts with horror, at the Idea, and it has stupified the Christian World. It has been the Source of almost all of the Corruptions of Christianity."

-- John Adams to John Quincy Adams, March 28, 1816.

"If I understand the Doctrine, it is, that if God the first second or third or all three together are united with or in a Man, the whole Animal becomes a God and his Mother is the Mother of God.

"It grieves me: it shocks me to write in this stile upon a subject the most adorable that any finite Intelligence can contemplate or embrace: but if ever Mankind are to be superior to the Brutes, sacerdotal Impostures must be exposed."

-- John Adams to Francis van der Kemp, October 23, 1816.

Lori Stokes said...

Perhaps Dan did not notice that I rebutted his claim that Eric is saying the Founders would have approved of gay marriage:

"It's also clear that Eric never stated that the Founders would have approved of homosexuality; this complaint is specious. The point of the post is to show an evolution of the policy of churches that were extant during the Founding period (and well before)."

How do I know? Because in his third to last paragraph, Eric says: "None of this is intended to suggest that gay or lesbian couples could marry in any of these churches in the eighteenth or nineteenth century. Rather, the relatively recent movement of America’s founding faiths to recognize gay and lesbian couples’ right to marry is part of the overall progressive character of American religion."

But to return to the Founders, I agree with so many of our members that they would have been the last people to suggest that Americans living in 2008 should scour their own 18th-century personal lives and beliefs in order to understand democracy, interpret the Constitution, or make political policy.

bpabbott said...

Brad: "Uh...I thought Jerry Falwell was dead."

Its another resurrection ;-)

You think he'll now ascend to heaven and leave us be? :-D

bpabbott said...

Dan: "Still, nobody has addressed my comments on the fact that the founding fathers would NEVER EVER accept homosexuality. Gays used to be put to death for these actions."

Please, give *one* example (during their life times) where the nations government the founder's established acted in a negative and direct manner towards homosexuality.

Dan Atkinson said...

Ok bpabbott, how about the fact that Washington prevented gays from serving in the military...which is sadly something we don't do today.

bpabbott said...

I find it disengenuous to posit that the founders intended (or would consider) the extension of the institution of marriage to include same-gender couples to be a right ... not that Eric has claimed such (he did not), but it is easy enough to infer such even if it was not implied.

However ... in interpreting the 9th amendment;

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
-- Ninth Amendment of the US Constitution

I am uncertain as to whether the founders intended rights to be determined by their opinions, the opinions of their society, or by the opinions of the people living at the particular time and place in question.

My sensibilities tell me it is the latter.

That said, I personally find the idea of labeling same-gender unions "marriage" to be a perversion of the word (not that I see same gender relationships as perverse).

Marriage has a traditional and well accepted meaning. Permitting civil unions is sufficient to provide the desired liberty. Redefining marriage to encompass a greater variety of civil contracts is not desirable, in my opinion ... and arguably has a negative impact on more lives than a benefit for others.

My argument against redefining marriage is in the context of how the word is interpreted by the law. How individuals or religious establishments wish to define it is nobody's business (imo).

Jonathan Rowe said...

And please don't discuss GW's booting the solider for attempted sodomy; given consensual sodomy takes an act of two and there was only one guilty party and one innocent party, it likely was an act of attempted rape. And even as bad as that was, his punishment was being drummed out of the military, not execution.

On the other hand there were credible rumors that Baron Von Steuben was homosexual and Washington's reaction was "don't ask, don't tell." It figures given the homosexual Von Steuben played an instrumental role in delivering America victory.

If Washington could put up with G. Morris' blatant adultery and fornication, he could put up with practically anything.

Jonathan Rowe said...

Heh. I was writing my comment, submitted it, and look at what Dan wrote.

bpabbott said...

Dan: "Ok bpabbott, how about the fact that Washington prevented gays from serving in the military...which is sadly something we don't do today."

YAWN ... the nation was not framed at that time and when it was ... war time powers. As the leader of the armed forces he may do quite a few objectionable things if *he* thinks it will help.

bpabbott said...

Jon: "Heh. I was writing my comment, submitted it, and look at what Dan wrote"

That explains it ... I was thinking you to be one hell of a typist ;-)

Tom Van Dyke said...

Dan Atkinson writes to TVD: I meant say God (since Jesus is my God I get words mixed up).

Uh, no, Dan. Your ignorance of what the Bible actually says is manifest. This is not the first time. You're backpedaling here, and if I call out our very polite friend Pinky [which I have], you, Dan Atkinson, will get called out seven times seven time, as you're misusing and abusing the Holy Scriptures.

After all, you put yourself out as an authority on the Scriptures, but your manifest ignorance of them shames them. You're not yet a follower of Jesus or even Paul of Tarsus, who wrote most of the Epistles. At this point in your life, you're a Pharisee, one who values the letter of the law above its spirit. I trust I need not remind you of the numerous verses in the New Testament that express God's---Jesus's---unhappiness with Pharisees.

Tom, my arguments do not hurt my case. The problem is that you have let intellectual arrogance plague your mind.

a) They certainly do, Dan. As to b) me, perhaps you're right. I'm working on it. I'm on my path, too. If I knew everything I should learn and know, I think the good Lord would just take me now, as my life would be complete.
___________________

That said [saying it for a necessary second time], the original post and the entire discussion below it is built on a false foundation and a manipulation of words. As previously noted.

If Dan Atkinson had made similar framed arguments in favor of his own position, dragging the Founders into this current issue, and making a commercial for his own religion/religious beliefs, I don't think he'd have been met with so much approval. The honest and principled inquirer is invited to disagree, but I do not think there is such a person here gathered.

My objections stand. Sectarianism and propaganda are very bad, except when we agree with them. This much we now know is true. We've all just proven it.

Brian Tubbs said...

I think it's fair to say that George Washington's policy was "don't ask, don't tell." But when forced to confront sodomy in the Continental Army, our evidence is that he condemned it, though I concede to Jon that GW's fervor MAY have been limited to that one situation, which possibly involved rape.

Brian Tubbs said...

Brad, nice cheap shot at Jerry Falwell. It's interesting that the many staunch liberals who actually took the time to get to KNOW Jerry Falwell liked him and respected him, even though they disagreed with him. I wish there was more such discourse and mutual respect like that here at American Creation. But, alas, the cheap shots at Christian conservatives continue.

Brian Tubbs said...

On the post itself, I commend Eric for his research and a well-written piece.

I also agree with Lori that Eric doesn't state that the Founders would support gay marriage today, but the implication is out there that they would've evolved along with their "founding faiths."

This is fallacious reasoning. For one thing, the Baptists were a part of the founding fabric. And the vast majority of Baptists in America today are strongly opposed to homosexuality and same-sex marriage. I don't mean this as a cheap shot, but the reason for this is that Baptists (unlike many other denominations) still read and respect the Bible as divinely authoritative. Liberal Anglicans like John Shelby Spong have all but jettisoned the Bible.

But it's not just the Baptists. As another commentator here pointed out, GW's old church has split with the American Episcopal Church over this issue.

Similar ruptures are taking place in other denominations, and it comes down to whether the Bible is considered divinely authoritative or simply an ancient book of writings.

p.s. Oh, and as far as Jesus, he didn't address homosexuality directly, but he did address marriage, and it was based on the premise that marriage constitutes a union between one man and one woman.

Jonathan Rowe said...

The Presbyterians were also a "Founding Faith" and I understand there is a split there as well. But it's obvious where the "Calvinists" in that Church fall.

Brad Hart said...

OMG, Brian!

It was not a cheap shot a Jerry Falwell. I think that even you will concede that Falwell made some comments against gays that were less-than-tasteful...like...the purple Teletubby is gay, etc.

If we are going to be THIS sensetive about every single thing we say then the blog is going to get very lame, very soon.

bpabbott said...

Brian: "For one thing, the Baptists were a part of the founding fabric. And the vast majority of Baptists in America today are strongly opposed to homosexuality and same-sex marriage."

What of the Baptists of the founding period? How is the opinions of todays Baptists relevant to the fouding?

Brian: "[Jesus] did address marriage, and it was based on the premise that marriage constitutes a union between one man and one woman."

It is my understanding that the federal government prohibits the use of the term "marriage" in the application of same gender unions. It must be applied to the context of a union of a man and woman.

Thus, the NT, tradition, and the federal government are consistent in their understanding of the definition.

However, that is not what the debate is about. No state has attempted to change the definition of the word, "marriage". What many do desire is to ensure the liberty for same gender partners to form a legal union.

bpabbott said...

Brian: "Brad, nice cheap shot at Jerry Falwell. It's interesting that the many staunch liberals who actually took the time to get to KNOW Jerry Falwell liked him and respected him, even though they disagreed with him."

Wow! ... rich irony in that ;-)

BTW, who were these "staunch liberals" ... and how do you define the term?

Do "staunch liberals" hold secular, humanist positions?

"We're fighting against humanism, we're fighting against liberalism ... we are fighting against all the systems of Satan that are destroying our nation today ... our battle is with Satan himself."
-- Rev Jerry Falwell

Are they members of the ACLU?

"The ACLU is to Christians what the American Nazi party is to Jews."
-- Rev Jerry Falwell

Do they support the first amendment's protections of religious liberty?

"There is no separation of church and state. Modern US Supreme Courts have raped the Constitution and raped the Christian faith and raped the churches by misinterpreting what the Founders had in mind in the First Amendment to the Constitution."
-- Jerry Falwell

Do they read the Bible with an enlightened mind, relying upon reason and rational thought?

"The Bible is the inerrant ... word of the living God. It is absolutely infallible,without error in all matters pertaining to faith and practice, as well as in areas such as geography, science, history, etc."
-- Jerry Falwell, Finding Inner Peace and Strength

Do "staunch liberals" favor liberty of sexual orientation?

"AIDS is the wrath of a just God against homosexuals. To oppose it would be like an Israelite jumping in the Red Sea to save one of Pharoah's chariotters."
-- Rev Jerry Falwell

You might have heard rumors of some "staunch liberals" who liked Falwell, but it doesn't appear the sentiment was reciprocated.

FWIW, that is a cheap shot. Take care not to set your expectations of those here to low, some might be obliged to give you what you expect ;-)

Tom Van Dyke said...

Well, Jerry Falwell is easy to get at because he was a bit, um, outspoken. There are equally outrageous folks on the other side of the issue: to concentrate criticism on the extremes is the enemy of good sense.

Ben, you write:

What of the Baptists of the founding period? How is the opinions of todays Baptists relevant to the founding?

Exactly my point about this whole affair. A specious link at best to the Founding. Cheers.

Eric Alan Isaacson said...

Thanks for your thoughts Brian.

With respect to your observation that “the vast majority of Baptists in America today are strongly opposed to homosexuality and same-sex marriage,” I would like to note that America’s Baptists are by no means of one mind these days when it comes to rights of gays and lesbians.

Consider, for example, the Association of Welcoming and Affirming Baptists (most of whose churches are affiliated with the American Baptist Churches USA) and its Rainbow Baptists. I believe you’ll find that The Alliance of Baptists, moreover, supports full human rights for gays and lesbians, including the right to marry.

Now I will have to concede, of course, that these organizations are considerably smaller than the Southern Baptist Convention, which was organized in 1845 to support the institution of slavery, and which has since worked with considerable passion to block equal rights for blacks, equal rights for women, and equal rights for gays and lesbians.

But I also think it’s at least possible that the Alliance of Baptists and the Association of Welcoming and Affirming Baptists may have a better grasp of the gospel of love that Jesus preached. “Wherefore by their fruits ye shall know them.” Matthew 7:20 (KJV)

Raven said...

Brian,

Don't you know what a joke/comparison is? Brad was not taking a cheap shot at your beloved Jerry Falwell. In fact, his point is exactly right. Dan (our resident Bible "expert") took it upon himself to preach to us about the "evils" of homosexuality, which is EXACTLY what Falwell did. If you can't handle this then I guess maybe we will have to convert the blog to a "touchy-feely" blog where nothing negative is EVER said about religion.

Your faith is not the only one that is talked about, Brian.

Phil Johnson said...

Raven, in response to Brian, wrote, "Your faith is not the only one that is talked about, Brian."
.
Yupper. You should try being secular for a while.
.
:<)

Lindsey Shuman said...

Hmmm...so yet again we are letting a good post deteriorate into a conservative/liberal battle. Brian, I think by now we all know where your leanings lie. Just please don't take every possible opportunity to point out where you think the blog is turning against the Christian right.

Dan, first off I wish you had never left. However, I must agree with the others in this thread when they point out the errors in your argument.

Again, let's try not to take offense so easily. And to the "conservative" bloggers, PLEASE FEEL FREE to voice your views and take a shot at the "secularists." We've been trying for a long time to encourage your persuasion to speak up here at American Creation. I for one would LOVE to hear more from you all!

bpabbott said...

Lindsay commented: "I for one would LOVE to hear more from you all!"

I'm in total agreement. The more debate and the more diverse the perspective the more everyone will need to rely upon their rational minds and ability to reason.

I hope everyone who participates here has an opportunity to pause and take account of his preconceived understandings and conclusions.

Jonathan Rowe said...

I think Brian, Roger, Tom, Matt H. and others well represent the religious conservative side. I don't think Dan and OFT do, but rather come off as very clownish. I for one am happy that Dan left because I think his presence as an official poster hurt the credibility of the blog.

Brian Tubbs said...

Real quick - on Jerry Falwell. I've seen some of the quotes provided a few posts above. In fact, the Internet is full of Falwell quotes. In some cases, they were taken from his early career, where he was more of a firebrand. In other cases, they are exaggerated. In some, they are made up. So, I'm not going to get into a "defend Jerry Falwell quote" debate. Suffice it to say that I don't stand 100% with Jerry Falwell. But I thought that the shot Brad took at him served no purpose in advancing this discussion. It was brought up as caricature and ad hominem.

But, setting that aside, let's address the overall issue itself. It is not an example of "hate" to be against the legalization of same-sex marriage or to agree with the Bible's rejection of the homosexual lifestyle. And what I see happening in today's cultural debate is that Christians are being pressured to give up the doctrine of biblical authority, in order to avoid being called hateful or bigoted or be caricatured with Jerry Falwell, etc.

Brian Tubbs said...

For the record, I have pounded the pulpit at my church, condemning the hatred shown toward gays and lesbians by many in the Christian community.

I've also reminded them that, as much as the Bible speaks against homosexuality, it's even harsher on pride.

And let me, once again, commend everyone for your posts here and hard work here.

Lindsey and all, I appreciate what you're saying. I'll try not to take too much offense, but may I ask that you all understand where I'm coming from? Most of the people who followed Jerry Falwell and D James Kennedy and who now follow David Barton are not bad people. They are not part of some sinister conspiracy aimed at overturning our Constitution and putting the Mosaic Code in its place. The vast majority of them are sincere, good-hearted people, who are deeply (and I mean DEEPLY) disturbed at what they perceive as the moral decline of our society. And you may disagree with a lot of what they consider "moral decline," but I don't think any of you would disagree with ALL of it, for the truly biblically-minded evangelicals point to poverty, child abuse, drug abuse, rampant alcoholism, child pornography and prostitution, etc. as among our society's ills. They see all this and those in America want the nation to "turn back to God" and heed George Washington's words when he spoke of "religion and morality" being the "indispensable supports" to our prosperity. And, frankly, they are not wrong to feel this way.

It's my heart's desire that these well-intentioned Christians will sit down and REASON with those in the more secularist camp, and come to an agreement or compromise on some of these things. That's why I appreciate what Rick Warren did at Saddleback by inviting McCain and Obama. I think that's what he's trying to do.

I realize I'm just a peon (sp?) and that Lindsey and others have put far more into this blog than I have. So, take my "vision" for what it's worth, but my vision for this blog is that people from different perspectives will sit down and politely REASON together - and strive to talk through and possibly work out our differences cordially.

It would be very easy to slip into Ann Coulter or Keith Olberman mode and just start attacking those we disagree with. But I hope we here at American Creation can be better than that.

Okay, sorry to "preach." That's my vision. My wish. Maybe I'm too sensitive and too idealistic, but at least you know my heart and my desire.

bpabbott said...

Brian,

It was not my intent to attack either you are Falwell. My only point was to illustrate what a "cheap shot" was.

Regarding same-gender marriage, there is no where in the US that such happens.

... or do you refer to same-gender civil unions and domestic partnerships?

Eric Alan Isaacson said...

Ben,

Both Massachusetts and California recognize the right of gays and lesbians to marry as a matter of state constitutional law.

I personally know gay and lesbian couples who have lawfully married in both of these states, and I have had the honor and pleasure of attending weddings of same-sex couples in California.

Click here for a photo of the California Secretary of State, my friend Debra Bowen, officiating at the wedding of my friends the Rev. Lindi Ramsden and Mary Helen Doherty.

If you scroll down to the photo that says "UUs of San Diego," you'll see (from left to right) the vice president of my church's board of trustees, Jan Garbosky, Rev. Jim Grant, Rev. Arvid Straube, and Bonny Russell. (You can also see me, in the background.) Click here for another photo of Jan and Bonny, and a short article.

Jan and Bonny have been together for two decades, and they plan to marry this October.

My wife and I love and treasure Jan and Bonny, and we will be attending their wedding in a few weeks.

We are, quite frankly, horrified that a ballot initiative, Proposition 8, seeking to revise the California constitution to deprive gays and lesbians of the right to marry, will appear on the California ballot this November.

A drive to amend the Massachusetts constitution to deprive gays and lesbians of the right to marry failed.

We earnestly pray that Proposition 8 will fail too.

Eric

bpabbott said...

Eric: "Both Massachusetts and California recognize the right of gays and lesbians to marry as a matter of state constitutional law".

You are correct. I had not bothered to do my homework :-(

Thanks for the correction :-)

I notice that Massachusetts uses the term "civil marriage". Do they refer to same gender unions differently?

In any event, I think it in error to legislate a new definition for what constitutes marriage.

I have no problem with creating a new civil union establishment that mocks all benefits and liabilities of a marriage contract. Thus providing the same opportunities and benefits to any and all consenting adults who wish to form a civil union.

I don't think insisting on same-gender "marriages" will serve any greater good, but instead will divide and distract our nation from the more important issues infont of us.

As marriage is arguably a religious institution, I think that it is unfortunate the government is involved in it at all.

Jonathan Rowe said...

Brian,

Very nice. Again you shine for your side and the difference between you and Dan A. is like night and day.

bpabbott said...

Eric/Jon (other legal experts)

I should check some of my other notions on this topic.

How does/might the U.S. Code which explicitly define "marriage" and "spouse" impact/complicate the creation of same-gender "marriages".

-----------------------
7. Definition of “marriage” and “spouse”
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.
-----------------------

Brian Tubbs said...

With respect to same-sex marriage, I respectfully submit that the issue is NOT a "civil rights" issue. I would concede that sending police out to break down doors to figure out what's happening in bedrooms IS a civil rights issue. So, while I - based on the Bible - oppose homosexuality, I do not seek to use the government to enforce that opposition.

That said, marriage is a different matter. The government does have a vested interest in the definition and health of the family.

It was well within the US government's purview, for example, to require that Utah abandon polygamy in order to be admitted to the Union.

It's also appropriate for states to regulate divorce laws, age requirements for marriage, etc.

There are legitimate issues in play with respect to same-sex marriage. I'm not saying I have the right to pound the Bible and let that be the end of it. But I AM saying that we, as a society, should work through those issues in a democratic manner.

Phil Johnson said...

.
Ben writes, "I don't think insisting on same-gender 'marriages' will serve any greater good, but instead will divide and distract our nation from the more important issues infont of us."
.
Apparently we are at a place where we can put our opinions on the table for consideration.
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This one about same sex "marriage" is a First Amendment issue and it begs the question of what the Declaration of Independece means with this statement, "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." Those unalienable Rights have been referred to as "Natural Rights". If I understand that, it means the ones human beings possess in the state of nature.
.
Who is to say that two--or more--people cannot form an association of personal intimacy with each other?
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You and I both know that when these questions finally get to be adjudged in the highest court that same sex marriage will have to be shown as legal as any.
.
The answer to this question that otherwise will not be settled, is the creation and acceptance of an amendment to the U.S.Constitution that defines not only marriage but family as well.
.
This problem, as I see it, surfaces as a result of post modern thinking. What doesn't seem to have been figured out is that it is incumbent on us to come up with some answer that will satisfy the majority. Our answer, according to our Constitution, cannot be decided on religious lines. They must be secular.
.
I believe the secular mind is capable of coming us with the best answer.
.

bpabbott said...

Brian: "With respect to same-sex marriage, I respectfully submit that the issue is NOT a "civil rights" issue."

Brian your comment implies that it *is*.

... or would you agree that *your* liberty to engage in "marriage is not a civil rights issue"?

The question is not whether same-gender marriage is a civil right, the question is whether or not marriage is a civil right possessed by the individual ... or whether the sanction of marriage is a right of possessed by the democratic majority.

Who is to decide what marriages are deemed proper and which are to be banned? Is this properly handled by a majority vote?

By what motive should the democratic majority be granted the power to judge who does and does not marry?

Regarding the US Constitution there is obviously none. This issue varies from one state to another. But in general where is the burden on the society which is of more importance than the harm done to the individual?

bpabbott said...

Phil,

I find your sentiments agreeable. The only point of debate for *me* is how we (the collective governing bodies) are to refer to same-gender civil contracts.

Shall the definition of marriage be expanded or should a different term be applied.

Phil Johnson said...

.
Ben, Marriage is a word that is bandied about as though it were the object in a game of free for all kick ball.
.
Manufacturers "marry" ideas to come up with better methods for production and that is only one in any number of uses. The same is true of the word, family. Postmodernism allows us to put words out according to context and so, we use a sloppy rhetoric. Ask any lawyer.
.
If the word, marry, in all its forms is to apply only to one man and one woman civil unions where the participants are identified as husband and wife, then, we'll have to have a law on the meaning of the word. What will we do with people that think of combining one form of metal with another as a marriage? Should they be prosecuted for misuse of the word?
.
This is a dead end street that takes us nowhere as far as I can see.
.
We need to get out of the box to find the answers.
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I support a committee to come up with the acceptable wording for a Constitutional amendment so we can be done with the argument for once and all time. It keeps us from much more important national issues.
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Even so, I think it is important to our society. In pre-postmodern times, we thought of family as a specific structure. Now, the people here in this site are considered family in one way of using the word. And, Rowe and Tubbs marry their ideas to come to some unity.
.
Men made the problem. Men can solve it if we give ourselves a chance.

Eric Alan Isaacson said...

Ben,

Historically, family law (including the law of marriage) has been regarded a matter of state law, not federal. Relatively recent legislation, rammed through by the religious right, currently prohibits federal recognition of the same-sex marriages that are validly executed in California or Massachusetts or Canada or Spain.

That means that for purposes of federal income-tax filings or Social Security benefits, for example, federal officials would ignore the fact that a same-sex couple is lawfully married in California or Massachusetts.

Federal legislation also purports to override the usual rule that one state is required to give full faith and credit to the judicial acts of another state.

I believe that this federal legislation is flatly unconstitutional. But many would tell you to expect the current Supreme Court to split 5-4. And some would tell you to look to Justice Anthony Kennedy as a likely outcome-determinative swing vote.

Those who say that civil marriage is not a civil right should be prepared to tell us what kind of right it is. The California Supreme Court ruled that civil marriage is a fundamental right in the 1948 decision of Perez v. Sharpe, when it invalidated state laws prohibiting interracial marriages. The California Supreme Court split 4-3, and popular opinion was strongly against the decision.

Such laws remained on the books in many states, whose legislators had concluded that because God created separate races, He surely intended for them to remain separate. (You can guess where Southern Baptists stood on this.)

Other states' courts dismissed Perez v. Sharpe as an aberrant decision by California’s wacky judicial activists. Southern judges, in particular, searched state and federal constitutional texts for references to an express “right to miscegenate.” They found none. Strict textualists, they looked for textual affirmation of a “right to interracial marriage,” and found none. They found no denial of “equal protection of the law,” because the law equally prohibited both whites and blacks from entering mixed-race unions.

The United States Supreme Court tried for a long time to avoid the issue – perhaps hoping to defer to “democratic processes.” As a consequence, it took the United States Supreme Court nearly two decades to catch up with California.

In 1967 it could delay no longer, and finally invalidated Virginia’s laws prohibiting interracial marriage, in the landmark case of Loving v. Virginia, which holds that civil marriage is indeed a fundamental civil right.

Please note well: Mixed-race marriages were illegal in many of these United States until 1967. They were illegal until I was seven years old. Had the United States Supreme Court continued deferring to “democratic processes,” mixed-race unions might still be illegal in some states.

The question today is whether gay and lesbian citizens are entitled to full civil rights as human beings – including the fundamental right to marry that was recognized in Perez and Loving.

And we properly speak of “civil marriage” here, to avoid any suggestion that people are entitled to demand the right to a “religious marriage” from a church or synagogue that does not bless same-sex unions. No one proposes forcing Catholic priests, Orthodox rabbis, or fundamentalist evangelical pastors to officiate at same-sex weddings.

Their religious rules for marriage should be their business, and their business alone. By the same token, their religious rules for marriage should not be imposed by law on the rest of us.

Eric

Eric Alan Isaacson said...

Here’s a link the California Supreme Court’s 1948 opinion in Perez v. Sharp, which held that marriage is a fundamental right. I urge you in particular to read the three-judge dissent, which urged deference to democratic processes. Also notable is Judge Edmonds’ concurrence, which argues that the ban on interracial marriage violated the religious freedom of Catholics, whose faith honored mixed-race unions (just as Reform Judaism honors same-sex unions today).

http://lmaw.org/freedom/docs/CA-Perez.pdf


Here’s a link to the U. S. Supreme Court’s 1967 opinion in Loving v. Virginia, holding nearly two decades later that marriage is indeed one of our “basic civil rights.”

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=388&invol=1

bpabbott said...

Eric,

My thanks for the informative response. I look forward to reading through the finds.

Thanks

p.s. It always surprises me that so many think they're bigotry is ok (because they believe God sanction it) while those of prior generations have been concluded not to be.

I understand why some will object to marriage being a civil right ... simply because it allows them to defer to the ingrained prejudices of the democratic majority.

Brian Tubbs said...

Eric writes: "No one proposes forcing Catholic priests, Orthodox rabbis, or fundamentalist evangelical pastors to officiate at same-sex weddings."

Eric, you should amend that statement to read "No one YET proposes..." That would be more accurate.

In this generation, the battle is whether to recognize same-sex marriage. The next generation (and I use the term "generation" loosely and in the socio-political sense) will involve whether a church who refuses to marry same-sex couples should retain its tax exempt status.

Of course, this doesn't just pertain to churches or pastors conducting marriages. It has wider ramifications. Will faith-based organizations be obligated to extend the same marriage-related benefits to same-sex couples as well as heterosexual couples? For example, will Christian schools be obliged to accept kids adopted by same-sex couples and include said couples in their PTA/PTF organizations? What about faith-based organizations with employee benefits? I could go on and on.

I'm not trying to be difficult, but there are wide-ranging ramifications here. And if same-sex marriage is nationally recognized, faith-based churches and groups who hold to biblical authority will be the ones who lose.

Brian Tubbs said...

And back to the issue of civil marriages...what about polygamy? Is the government (be it at the state level or federal level) within its rights to REFUSE to sanction polygamous unions?

I can't help, but ask - and I ask this legitimately and NOT argumentatively - if we are going to say that the government shouldn't define civil marriage according to gender, then why should the government define marriage according to a number?

In other words, if we're going to recognize the "civil right" of consenting adults to voluntarily enter into a same-sex marital union, then what about the "civil right" of THREE consenting adults or four or five or six or so on???

Once you've redefined marriage to include same-gender relationships, then I don't see how you can limit it to just two people?

Once you've opened Pandora's Box, you can't close it at will.

Eric Alan Isaacson said...

Brian,

You write that "there are wide-ranging ramifications here." Indeed, you are correct -- recognizing fundamental human rights is something that has wide-ranging ramifications.

Recognizing that black Americans have rights has had wide-ranging ramifications. Recognizing that women have rights as human beings has too. Upholding fundamental human rights always has wide-ranging ramifications.

Yet the parade of horrors advanced against same-sex marriages is one that ranges from silly to downright paranoid.

We recognize that women should not be denied fundamental rights because of their sex. Yet there is no legal compulsion requiring the Mormon and Catholic churches to allow women to enter their priesthoods.

We permit divorced men and women to enter civil marriages -- even though the Catholic Church condemns them as adulterous. Our courts will uphold the fundamental right of divorced men and women to marry. But they're not going to require Catholic priests to officiate at such weddings.

Mixed-faith couples have a right to marry that any court in the United States, state or federal, can be expected to uphold. Yet no court would require a rabbi with scruples against interfaith marriages to officiate at one.

Most American rabbis take very seriously the biblical injunction against interfaith marriages. In California, it's much easier to find a Reform rabbi to officiate at a same-sex marriage of two Jews than it is to find one who will officiate at a mixed-sex marriage of a Jew and a non-Jew.

But I have never met a rabbi who thinks the scriptural rule against interfaith unions should be enforced by the state to outlaw interfaith weddings as a matter of civil law. And although Jews, as a distinct minority, have far greater reason to fear discrmination and religious persecution than America's evangelical Christians ever have, I have never met a rabbi who fears the day might come when he or she will be required to officiate at a wedding that the rabbi believes is prohibited by scriptural law.

I hope that helps.

Eric

Eric Alan Isaacson said...

Brian,

You suggest that acknowledging gay and lesbians may claim the same fundamental right – the right to marry – that is exercised by heterosexual couples would somehow compel us to accept a further fundamental right to practice polygamy.

I don’t see how that follows. If marriage is a fundamental right, it seems to me that you can’t deny the right to gays and lesbians, any more than you could deny it to a racial or religious minority.

I suppose if you permit heterosexuals to practice polygamy, then one could argue that gays and lesbians should be entitled to practice polygamy too. But polygamy has never been deemed a fundamental right in this country.

Moreover, when the United States Supreme Court upheld, against free-exercise challenges, laws banning polygamy, it did so based on secular considerations underlying those laws – considerations that have no relevance to same-sex marriages.

In Reynolds v. United States, 98 U.S. 145, 165-66 (1878), for example, the Court wrote: “In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests.” Id. For “when applied to large communities,” the Court believed, polygamy “fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy.” Id. at 166.

Congress outlawed polygamy based not on Judeo-Christian religious traditions, but “because of the evil consequences that were supposed to flow from plural marriages.” Id. at 168; see also Davis v. Beason, 133 U.S. 333, 341 (1890) (holding that bigamy and polygamy “tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman, and to debase man. Few crimes are more pernicious to the best interests of society, and receive more general or more deserved punishment. To extend exemption from punishment for such crimes would be to shock the moral judgment of the community.”).

Some have suggested that prohibiting polygamy serves egalitarian purposes. Judge Richard Posner writes that “the prohibition of bigamy (polygamy) . . . by limiting competition among men for women increases the sexual and marital opportunities of younger, poorer men.” Richard A. Posner, Sex and Reason 215 (Cambridge: Harvard Univ. Press, 1992). He observes that “polygamy is anomalous in a system of companionate marriage, because a man is unlikely to have the same reciprocal relationship of love and trust with multiple wives; as well as the fact already noted that it benefits a few men at the expense of the many.” Id. at 216.

Nor has polygamy generally been associated with decent treatment of women. “It may not be an accident that the congeries of practices loosely referred to as ‘female circumcision’ – primarily, the removal of the clitoris and (until marriage) the sewing up of the entrance to the vagina (infibulation) – are found only, as far as I am able to determine, in polygamous societies,” Judge Posner continues. Id. at 256-57.

These are secular justifications for discouraging polygamy, not doctrinal religious ones. And the secular rationales for banning polygamy have no legitimate application to same-sex unions, which cannot be expected to contribute to the subjection of women, to produce gross social inequalities, or to foster despotism. No credible argument can be made that allowing loving, committed couples to marry would produce the social problems thought to flow from polygamy.

Eric

Phil Johnson said...

"The answer to this question that otherwise will not be settled, is the creation and acceptance of an amendment to the U.S.Constitution that defines not only marriage but family as well."
.
How often do we hear about "marriage as an institution"?
.
Family stands on its own--equal, separate and apart from the other institutions--in our American society. Marriage is a function of the family.

Religion is one of the other institutions. It also stands on its own--equal, separate and apart from the others--in our American society.
.
In American society--under our Constitution--religion has no legal right to define any function of government nor does the government which is one of the other institutions have the right to define any function of religion.

Maybe American society has matured to the place where we can, as a people, accept our informed responsibilities and amend our Constitution in order to define the American family for once and all time.
.
Maybe not. Maybe we still need politicians to coral us for their purposes.
.
Until we have an amendment to remedy the situation, I have to support same sex and multiplex unions.
.
Personally, I think homosexuality is an insult to the foundation of the family.
.

Eric Alan Isaacson said...

As I have briefs to write and arguments to prepare for, I'm afraid I'm going to have to drop out of this dialogue for a while.

Please do not mistake my silence for lack of interest.

Eric

Brad Hart said...

Well, I think it is clear that this thread has become the longest and most popular debate on American Creation.

Being that I am no legal expert (though I do hope to attend Law School next year) I have thoroughly enjoyed the comments made in this thread. I do want to say that I find Brian's argument about polygamy very interesting. I think he may have a good point about the "Pandora’s box" being opened. Again, I am no legal expert, but his point seems valid.

bpabbott said...

Eric/Jon/others,

While reading through Perez v. Sharp I quickly came across something that surprised me.

(Eric, I assume you provided the highlights? ... if so, thanks)

In Meyer v. Nebraska, 262 U.S. 390, 399 [43 S.Ct. 625, 67 L.Ed. 1042]. the court wrote;

“While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated."
(emphasis is mine)

What I find must surprising about this is the implied absence of the 9th Amendment. Is not *all* liberty guaranteed?

Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Is not a denial of liberty commensurate with a violation of a certain right?

Could not the entire case have been settled on as a violation of the 9th Amendment? ... and yet it is not mentioned?

bpabbott said...

Brian: "Eric, you should amend that statement to read "No one YET proposes..." That would be more accurate."

(cheap-shot-begin)

oh-oh ... someone better drag the cross out of storage, it looks like Brian wants to hoist himself up and nail himself to it ;-)

(cheap-shot-end)

In all seriousness, your fear of what *might* come to pass does not justify the subtraction of *actual* liberties from others.

Do you really think such rhetoric will be persuasive here?

bpabbott said...

Phil,

Excellent sentiments, but my jaw bounced off the floor when I got to the conclusion.

What leads you to conclude that homosexuals desire marriage for the benefit of "[insulting] the foundation of family"?

... or did you mean that you find such "[offensive] to the foundation of family"?

I assume the latter, yes?

I'll add that those who support the liberty of another to make a choice they find offensive have a keen understanding to what liberty is about.

Kudos to you!

Phil Johnson said...

Ben writes, "my jaw bounced off the floor when I got to the conclusion.

"What leads you to conclude that homosexuals desire marriage for the benefit of '[insulting] the foundation of family'?
"
.
Every social institution is built on a single value. I see the basic--founding--value of family as being involved in the creation, maintenance, and development of new human beings to carry on the ancestral line--the familial strain.
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That includes the highest interpretation of the worth of the marriage partners to each other--members of the opposite sex united and having children. So, the family is part and parcel to the cycle of life.
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Homosexuality denies that as the highest worth of family and, as such, their action amounts to a rejection of the value of reproduction. As such, it presents the family with an insult to its foundational values--marriage is not for self satisfaction; but, for the development of the other. Men and women develop more completely through the intimate relationships of marriage with each other. Homosexuality rejects that basic value.
.
While I can say a lot more on this subject, I'm not so glib in articulating the hypothesis I am working on it. REmember, it is only an hypothecation--that's all.
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Ideas that come from within evolve.

Eric Alan Isaacson said...

Ben,

The reference in Meyer v. Nebraska is to the liberty protected through the due-process clause of the Fourteenth Amendment.

The Fourteenth Amendment says that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws."

When federal courts protect individual rights from incursions by state governments they generally do so on the basis that the challenged action violates the Fourteenth Amendment's due-process clause.

You might argue that these rights should be protected under the privileges-and-immunities clause, but the Supreme Court rejected that position in 1873 in The Slaughterhouse Cases, and the privileges-and-immunities clause has never been revived.

Subsequent decisions have held that some of our most fundamental liberties - - including freedom of expression, freedom of religion, and freedom of the press - - are liberty interests protected by the Fourteenth Amendment's due-process clause. But our courts won't apply the clause as one that protects "all our liberties."

The Ninth Amendment's provision that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," was important to the Framers, but has never been given real content by the courts.

Robert Bork called it an undecipherable "ink blot" that should not be given any content.

The Supreme Court has pointedly avoided placing reliance on the Ninth Amendment. In Roe v. Wade, for example, the Supreme Court said that the right of privacy is "founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action" rather than in the "the Ninth Amendment's reservation of rights to the people," as the district court had held. 410 U.S. 113, 153 (1973).

In practical effect, the Ninth Amendment has become little more than a historical curiosity.

I've heard lawyers deride what they think is a weak case by saying "but I bet you've got a great Ninth Amendment argument." Which is to say, you don't stand the slightest chance of winning.

Eric

Tom Van Dyke said...

Mr. Abbott, you have Mr. Tubbs at a disadvantage, as he cannot return fire for any number of reasons. As to what "rhetoric will be persuasive here," here---on this blog, to those writing in this comments section---it's absolutely unprobative as to the quality of arguments.

Moreover---Brad---this is barely a discussion at all. A pastor like Mr. Tubbs can mildly demur without threatening his livelihood; as this fellow found out, getting anywhere near the line of fire is bad for business. Very bad.

And so, you will seldom if ever see a good discussion on this issue because anyone with half a brain will steer clear. Such folks prefer the privacy of the secret ballot.

As for the substance of Mr. Tubbs' use of "YET," there are already similar issues on the hot bubble: pharmacists in Illinois and New Jersey perhaps losing their livelihoods for a conscientious objection to dispensing abortifacients; Catholic adoption services folding rather than comply with Massachusetts law; and the right for doctors and hospitals to avoid any involvement with abortion hangs right now on an HHS directive that would and will be overturned in a future administration.

As for Mr. Johnson's comment, if he were a pastor like Mr. Tubbs and he lived in Canada, he'd already be up on charges by Canada's thought police.

There. Hopefully, I've laid out the donut and avoided the hole. Me, I think popular sentiment is on course towards what Mr. Isaacson calls "progress," and think it would be best for our nation---and all the people involved---if it took its natural course rather than being imposed by unelected courts. I'm an "originalist," after all.

As to Mr. Abbott's invocation of the Ninth Amendment, the nearly-identical Tenth Amendment reserves the dispotion of such things to "the states." So far, this is not a federal issue, which would invoke the Fourteenth Amendment and oblige the Supreme Court to act.

Still there is the looming constitutional crisis, as Mr. Johnson notes, that one state's marriage laws will oblige the other states to recognize and observe them under the constitution's "full faith and credit" clause. It seems likely to me that a sharply-drawn case, perhaps even a tax-exempt status question per Mr. Tubbs' "YET" will oblige the Court to grant certiorari in the next 10 years.

The the real fun begins. The beat goes on...

Brian Tubbs said...

Ben, I got a kick out of your comment. I assure you that I'm not trying to hoist myself on a cross. :-) I'm simply pointing out that these issues have ripple effects.

Quite often, laws and/or court rulings (and it's frankly a shame that "court rulings" are today considered legitimate policy-making exercises - Jefferson would be flipping in his grave!) are handled in such a way that the "solution" creates more problems than were originally present.

In the case of same-sex unions, there WAS a compromise emerging at the state level. That compromise was that states could (at THEIR legislative discretion) establish "civil unions" with essentially the same benefits as a married couple. This would preserve marriage as a traditional, heterosexual institution, but allow states some flexibility (consistent with the federalism framework our nation was founded upon) in offering benefits and legal protection to same-sex couples.

While many Christian conservative groups were opposed to this (and they had every right to be), the gay rights lobby was winning. Momentum was definitely swinging in their favor, so much so that Bush and Cheney (in the 2004 election) all but supported the right of states to establish civil unions.

But, gay rights activists have now gone BEYOND that, pushing for complete national recognition of same-sex marriage.

My personal opinion (as a citizen)...let the states decide what they want to do insofar as civil unions. Just make sure that the states decide LEGISLATIVELY (either through the legislature or through voter referendum). But let's not redefine marriage. Let the definition and understanding of marriage remain what it has been for most of human history.

Brian Tubbs said...

Let me also remind everyone here that it was George Washington - remember him? - who said that "religion and morality" are "indispensable" (that means we can't do without them!) "supports for political prosperity."

This means, contrary to what Phil asserts, that religion (and morality, which is based upon it) is NOT a separate entity from government. According to Washington (who has more authority on the nature of our government than all of us here combined), religion is an indispensable pillar to our government and society.

I say all that to say this...

It's well within the government's purview (at least according to the Father of our Country) to legislate morality.

I stand with Washington.

Phil Johnson said...

Brian writes, "...that religion ... is NOT a separate entity from government."

Government is established in the U.S. Constitution. No law can be made to establishment religion as being a part of government.

Religion exists with or without law.
.
The two are separate from each other.
..

bpabbott said...

Brain,

I very much appreciate your response. I'm glad you're not planning a crucifixion for yourself ... you'd be missed ;-)

Regarding Jefferson, I agree he'd be flipping in his grave. On the other hand he suffered many sleepless nights fretting over the freedom the court was given to interpret the law. I can only presume he didn't like the construction of that part of the Constitution, and wouldn't like it any more today.

Regarding same-gender "civil unions" I wouldn't call it compromise. I'd call it accommodation. It is an accommodation because no one loses anything they presently posses and those who presently denied the liberty of choosing a life partner will have that liberty restored in full.

The push for same-gender marriage that I infer as a desire to be vindicated after many years of being demonized and treated as second class citizens is not proper (imo).

However, it is to be expected. And many among the "Christian conservative groups" have acted to ensure that such vindication would eventually come to pass :-(

Regarding redefining "marriage", I think I've been very clear on my position on that specific point ... and I agree with your sentiment; "[We should let] the definition and understanding of marriage remain what it has been for most of human history."

Regarding GW, he did say that, but that isn't proof of the claim.

Regarding legislating morality, I agree. However, if that morality is based upon religious doctrine and cannot be justified by reasoned argument then I (personally) would not call it "morality" ... instead I'd see its enforcement as tyranny.

Regarding religion and government, I don't think government necessarily depends upon it. However, organized religion certainly does (each church is governed in some manner).

If we were to speak of religion in the context of a sense of purpose, a calling to duty, the desire to improve ones self and the lives of others, the sentiment that morality transcends the individual, then religion does not rely upon law or government. However, law and government does owe a great debt to such religious principles.

"Of all the dispositions and habits which lead to political prosperity, Religion and Morality are indispensable supports. [...] reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.”
-- George Washington

Notice that my comments are entirely consistent with Washington's, and that Washington's words do not imply that government should be involved in religion, only that "political prosperity" depends upon "religion and morality".

And while it might appear that "political prosperity" may be supported by the government taking a position to encourage religion, such an act would certainly lead to offense by those who wish to dictate their own religious direction, and would not be congruent with "political prosperity."

"Government is not reason, it is not eloquence -- it is force. Like fire, it is a dangerous servant and fearful master."
-- George Washington

In any event, I sincerely appreciate your response, and your effort secularize it for my digestion

Phil Johnson said...

With respect to Brian Tubbs, I want to reiterate my position on the separation of religion and government which is at issue here.
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In one of my earliest comments at this site, I remarked on the genius of the Founding Fathers. To me, it is that their most sincere desires seem to have been focused on the potentialities of the individual as a free agent. And, that is punctuated in the Bill of Rights without which our U.S. Constitution would not have been ratified. In simple language, the development of the individual as a person was uppermost in the Founders thoughts.
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Think about the implications that come out of the First Amendment.
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Not only does the amendment disallow government from intruding on an individual’s right to pursue their own sense regarding their religious beliefs; but, it sets a precedent of separation of one of society’s institutions from another. Government—ours—is instituted based on a single foundational value, “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.
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In the same way, religion is instituted based on a single foundational value, that there is a higher power to whom all must eventually be accountable.
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And, so is education and the family, each one has its own foundational value.
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As long as our society keeps the integrity of each one separate one from the other, we get along famously. But, when one institution oversteps its boundaries and infringes on the values of the other, we have opened the door to serious dysfunction.
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I think that is what’s happening in the area of marriage where the family is under assault by same sex marriage. One institution is applying its value system to another. It cannot be helped in a society in which individuals are at liberty to pursue their own happiness; but, we can stand up on behalf of our separate institutions in the declaration of an amendment to our Constitution so that our value systems can be enshrined for all time.

Brian Tubbs said...

Phil, the Founders strongly supported the INSTITUTIONAL separation of "church" and "state." They did not want a "Church of America," like there was a "Church of England."

But this is NOT the same thing as separating religion from government - unless you mean "organized religion."

Yet even then, I remind everyone that religious groups have the same right to organize and lobby the government that secular groups have. And the Founders never disapproved of this.

The Founding Fathers did not expect citizens to leave their religion outside the voting booth. I have every right to bring my religious convictions and beliefs with me INTO the voting booth. And an elected official has every right to bring her or his religious values with them into the legislative hall. And so on.

Phil Johnson said...

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Brian, you seem to be--purposely--completely missing my point.
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In your first comment to me, you spoke of entities.
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Now, you are speaking of individual persons.
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As an individual you build your integrity on certain basic values, each one of which exists in separate areas of your being. And, it is true--as an individual--that the foundational value of religious beliefs impacts on your beliefs about government, education, family, and economic choices, each of those other areas also has its own foundational value that is separate and apart from each other one. As an individual, you put them all together and so, there is Brian Tubbs just the same as there are so many others.
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It is my point about what it means to be an American under our U.S. Constitution. We, each of us, is endowed with the right to pursue our own happiness. When one of our personal foundational values intrudes on another of our personal foundational values, we have the ability to make a personal choice on how we will deal with that. Thus, when our religious value dictates our choices in our family, we make choices--that's how we get to be our self. And, we, generally, vote our our personal values at the polls.
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But, when those values are put upon us by some outside force such as what we read or are otherwise exposed to, then, that force has the power to define who it is that we shall be. If we are NOT allowed to read some book or see some picture, or hear some message, our self is limited to what that power allows.
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I repeat, Newdow is correct. The government has no right to intrude upon my religious beliefs and that is guaranteed in the U.S.Constitution.
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This is the sense in which I say that government and religion are two separate entities in the same sense that education and government are two separate entities. Which, by the way, the First Amendment also guarantees.
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Brian Tubbs said...

Phil writes: "The government has no right to intrude upon my religious beliefs and that is guaranteed in the U.S.Constitution."

Not true. The government (be it at the state level or federal level) has exercised the right to outlaw polygamy (even though certain sects have deemed it to be a religious belief and practice). The government also has the right to stop sects from using mind-altering drugs, even though some cults claim this is part of their religion. I could go on.

Also, I would point out that the government is (or at least should be) a reflection of the people. If a majority of the people embrace Judeo-Christian values, then this will be reflected in the government's policies. And there's nothing wrong with this. It's called democracy.

Phil Johnson said...

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I want to be generous, Brian.
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I wrote, "The government has no right to intrude upon my religious beliefs and that is guaranteed in the U.S.Constitution."
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And you responded with, "Not true. The government (be it at the state level or federal level) has exercised the right to outlaw polygamy (even though certain sects have deemed it to be a religious belief and practice). The government also has the right to stop sects from using mind-altering drugs, even though some cults claim this is part of their religion. I could go on."
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And, you polisth that off with, "Also, I would point out that the government is (or at least should be) a reflection of the people. If a majority of the people embrace Judeo-Christian values, then this will be reflected in the government's policies. And there's nothing wrong with this. It's called democracy." (my emphasis)
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What? Is this merely a discussion between you and me? Don't any of the others that frequent this site have anything to say?
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What your view is called, Brian, is majoritarian rule.
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Dr. Franklin claimed we had been given a republic if we could keep it. Apparently, you do not like the idea of a republic.
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There are any number of illegal acts of law on the books and they have been there for a long, long time. If you break one of them, you are liable to be held accountable. That the government intrudes on the rights of some individuals to have relationships with others by mutual consent does not mean the government does so by some right.
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That is precisely what these arguments are all about. It is what Newdow is arguing in both of those videos. Did you attend either one? And, eventually, the questions will be settled.
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What you--as a representative of the majoritarian view--seem to be claiming here is that religion has put its foot in the door of American politics and has, thereby, established its right to move into the main rooms of governmnet. What we can see is that it isn't about to back off until it has its way in every aspect of life. That is what the Dominion Doctrine is all about, right?
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America will rue the day religion and government are combined.
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bpabbott said...

Phil: "The government has no right to intrude upon my religious beliefs and that is guaranteed in the U.S.Constitution."

Brian: "Not true. The government (be it at the state level or federal level) has exercised the right to outlaw polygamy (even though certain sects have deemed it to be a religious belief and practice)."

Lions, & Tiger, & Bears ... oh my!

Brian, I know of no evidence that what you speak of qualifies as "religion", with regard to the understandings of those who wrote the first amendment. Do you suggest that there is no religious freedom because the US will prosecute those who hold slaves or indentured servants?

Polygamy is a greater threat to the liberty of women (assuming one man and multiple wives ... rather than vice versa) than it is a exercise of liberty by the man.

Brian Tubbs said...

Ben, Phil, et al, I am drawing a distinction between "religion" and "church." Broadly defined, religion represents a worldview - be it monotheism, polytheism, pantheism, and so forth. There is NOTHING in the US Constitution that says people have to set aside their religious worldview when engaging the political arena.

And, yes, democracy is predicated on majoritarian rule. I'm not advocating ABSOLUTE majority rule, but the government WILL and SHOULD reflect the majority. In the US, we obviously have a Republic - which was set up to "check" majoritarian rule. And that's appropriate. That's why we have a Constitution. But the purpose of the Republic is not to shift from majority rule to minority rule.

Back to my main point...we can and we should bring "religion" (and I define that as a worldview - I don't mean it in terms of church authority) to bear in public policy.

Phil Johnson said...

My stand, Brian, is on the U.S.Constitution.
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I immediately take umbrage when ever the U.S.Constitution is threatened by jeopardy from any source be it an overly ambitious prosecutor or some religionist claiming an interpretation based on their religious view.
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I am wary of any foot-in-the-door approach to over ride the Constitution.
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As far as a Christian or any other religious person being driven by their belief, I would go to the wall for their right to make their personal and group choices. But, to use the government to promote their religious position? Never!.
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bpabbott said...

Brain,

I genuinely appreciate your tone and absence of religious rhetoric. Thanks for that.

Brian concluded: "...we can and we should bring "religion" (and I define that as a worldview - I don't mean it in terms of church authority) to bear in public policy."

Provided you and others can express/justify their "world view" in a secular way then I'm all for it. If your view is something like "the Bible says it so we must do it", then I have no interest.

If any wish the government to accept and promote such blindness then I'd obviously l throw a hissy fit ;-)

The end result will not benefit the nation or religious establishments. Political manipulation of the religious by patronizing their faith will eventually rot and decay both the political and religious institutions.

To be honest, I see politics as largely a cesspool and struggles to maintain the perception of constructive value. I think we would each agree that such institutions are in need of "religion", but we have very different idea of what religion is, and why politicians are in need of it.

While religion (imo) may inspire, it is *not* a world view. Religions is a spiritual view. It embodies purpose, inspiration, constructive aspirations and such.