From a Debate on Same-sex Marriage

miércoles, 15 de mayo de 2013

From a debate on same-sex marriage

In LinkedIn:

James: If anyone is still listening, today the Governor of Minnesota signed into law the right to same-sex marriage. Minnesota is now the 12th state in the US to have marriage equality. Opponents argued vehemently that this violates their rights to live in a state that defines marriage as valid only between one man and one woman. Does the passage of this law violate someone's "rights"?

Jelka: To answer your question, James: yes, on a psychological [basis] perhaps. Many people's belief systems with regard to marriage are turned upside down by laws which allow same-sex marriages. Despite the high divorce rates, despite people taking a "pre-nup", still, I think that if we would ask the man and woman in the street, they would be against this law.
They will, at least, have the perception that their rights about thinking what is right and wrong, engrained in their psyche for centuries, have been taken away from them.

Jose Angel: I tend to agree with Jelka. It depends, James, on whether you assume that extending the definition of marriage to include same-sex marriages is a major overhaul of the institution. Which I think it is. In that sense, many people feel that an age-old institution is suddenly changed into something else—another institution which has some elements in common but is not the same. Let's take an analogy: imagine a country suddenly gives exactly the same treatment to both citizens and non-citizens, foreigners all, etc., declaring "we're all citizens now". That's good news for mankind perhaps in a way, but it might be very bad news to older citizens, who might feel that "their" citizenship had been scrapped with a legal legerdemain. 

James:

Thank you jelka and Jose for your thoughtful answers. In Minnesota there was a referendum last Fall in which the question was placed before the voters whether the state constitution should be amended to define marriage as between one man and one woman. That amendment was defeated 53% to 47%. Recent polls have also shown that a majority of the adult population in the state favors same-sex marriage. This of course was not true only a few years ago. So while not everyone in the state favors same sex marriage the majority of "men and women in the street" in Minnesota clearly do. The law clearly provides that religious institutions are not forced to perform same-sex marriages. In fact, many religious congregations and clergy worked to pass the same-sex marriage bill. But those who are opposed to it are not forced to comply. Do those who have "sincerely held religious beliefs" in favor of traditional marriage and against same-sex marriage have a legal right to refuse to recognize same-sex marriage by refusing to provide goods and services such as food and refreshments for receptions, accommodations for receptions, tuxedos and wedding gowns, etc. to same-sex couples? In Minnesota, there has been a Human Rights Act for 20 years that has prohibited discrimination in providing goods and services to people based on sexual orientation and other protected classes. I understand that some may feel the ground has shifted around them and their world view in a way that makes them uncomfortable but does that violate their legal rights in any way? Think back to issues such as allowing women to vote by constitutional amendment in the 1920's. Were mens' rights violated? How about the 1960's when the Civil Rights Acts of 1964 and 1965 were passed prohibiting discrimination on the basis of race, religion and sex were passed. Were the legal rights of white males violated? Does a sense of loss, however deeply felt, equal a loss of legal rights?

Jelka: Thank you, James, for your very enlightning commen! And I totally concur with your last sentence. We're talking about love here, not war. People will have to get used to the idea of same-sex marriages.

I do have some empathy, though, for some old ladies and gentlemen, who cannot keep up with the rapid way life's changing; who simply shake their heads, whilst watching the horrors on t.v. and can't help thinking:"what is happining to our world?".

Jose Angel: I think part of the issue here is the "legal engineering" which has sometimes accompanied the passing of same-sex marriage laws. Here in Spain it was assumed that it was not unconstitutional because the Constitution stated that "man and woman may contract marriage" and that was construed to mean that it did in no way refer to the sex of the persons contracting marriage, but simply that "men may contract marriage with someone, sex unspecified, and women may contract marriage with someone, sex unspecified". Now you may be in favour of same-sex marriage or against, but that is what I call a legal legerdemain. More clearly so when the foreword to the law explicitly recognizes that all legal codes predating 'this' law presupposed that marriage meant marriage between man and woman.  Note that the law was not supposed to MODIFY the constitution (it cannot do that) but to regulate marriage within the constitutional provisions. These were (to my mind) openly violated; passing a law on same-sex marriage would have required a modification of the constitution but then there was not a parliamentary consensus on that. To my mind this piece of juridical engineering may show much concern for the rights of gay people, which is good, but it does not evince much respect for legal procedures, which is bad.  People tend to judge of legal and political actions according to their interests, and so it is to be expected that those who favour gay marriage in Spain will tend to either ignore this problem as a scholastic exercise in semantics, or they may say oh well, its a shortcut to a good end so let's stick with the end and never mind the means. Meaning by means a play on the value of words which maybe they would not accept if the issue were indifferent to them, not to mention if it were unfavourable to their interests. 

In the case you mention in Minnesota, there's more than a bit of legal engineering too. According to what you say, the issue was framed as one of RESTRICTING marriage to heterosexual couples. And it was defeated. But the legal engineering was in the framing. Marriage was, by definition and presupposition, understood to be heterosexual, and the whole solution to the problem was already in the defusing of that presupposition—as if words and laws did not mean according to context. The legislators who defined marriage in the first place never thought it would be necessary to specify that marriage was marriage between man and woman, because that is what marriage was then, and was expected to remain forever. So, another nifty piece of legal engineering, the opportunity and desirability of which will be judged by people according to their interests and political priorities.

James:

Jose, I understanding your reasoning and am not familiar with Spain's Constitution although as you explain it it seems that it could be interpreted as being ambiguous and thus open to interpretation. I am totally unfamiliar with what laws preceded the Constitution or what legal maneuvering may have occurred. In fact I am altogether unfamiliar with Spain's legal system. In Minnesota there was a statute that defined marriage as between a man and a woman. Then, legislators decided to try to put the statute in the Minnesota Constitution which was silent on this issue. The proposed constitutional amendment was placed for a vote in a referendum and it failed to pass. A majority of voters in Minnesota were displeased with their legislators because of the way that and other issues were handled during the last legislative session. The majority of legislators in the current session just passed a law which which enlarged the definition of marriage to include same-sex couples. There may have been implicit expectations by some that the definition would never be expanded but there was no "legal engineering" as you describe it. It was done according to existing and long-standing rules of how laws are made in Minnesota.

Jose Angel: 

My point precisely—same case as in Spain. A constitution amended through the kitchen door, or transformed retroactively by a lower-level law... which was supposed to adhere to the constitution in the first place. Just imagine if the political wind changed and they presupposed "person" to mean, of course, "white person", and proceeded to enact legislation accordingly. The way it used to be. But then Humpty Dumpty already solved these problems in semantics and authority a long time ago. The meaning of the words depends on who's boss.



James: Jose, I think I mostly agree with what you're saying. The civil rights laws protecting women and minorities were passed in the mid-1960's. I was a teenager at the time but I was fully aware of what was happening and its significance. Prior to the statutes being enacted there were some U.S. Supreme Court rulings on equal education and other related issues that were interpretations of the Bill of Rights and the U.S. Constitution.

I agree that the meaning of words in the U.S. Constitution and Bill of Rights depends on interpretations by the U.S. Supreme Court and as you say "The meaning of words can depend on who's boss."

But the U.S. Congress enacted new statutes in 1964 and 1965 that clarified and solidified the rights of minorities and women. Obviously, there was a majority in the Senate and House of Representatives who voted for these changes and the President signed them into law.

I suppose it is theoretically possible that a legislative majority and President in the future could enact laws reversing the Civil Acts of 1964 and 1965. However, I tend to agree with Martin Luther King, Jr. that "The arc of history bends toward justice." He did not say that it is a straight line.

I agree that 50 or 60 years ago laws protecting sexual orientation and gender identity could not have been passed. Laws allowing marriage between same-sex couples could not have been passed. Previous legal cases challenging laws against same-sex marriage failed. I have known extremely liberal legislators who did not support same-sex marriage. President Obama and Vice -President Biden did not support it until shortly before the last Presidential election. As they explain it, their views have evolved.

I discussed this issue with one of my gay friends over the past week. He and I agreed that we did not ever believe same-sex marriage would be legalized in Minnesota in our lifetimes. Times change, people change. Words are subject to interpretation. In the case of legislation I would put it slightly differently "Laws can change depending on who's boss."

El legislador ha decidido remover