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Mr. Justice Scalia Dissents
Mr. Justice Scalia, dissenting:
Published in General, Law, MarriageIf, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.
Aww crud. You beat me to it. Lesson learned. Don’t try to beat a Jersey lawyer to the draw. :)
I think that we missed a chance – years ago – to change the nature of the argument and to minimize our downside risk.
I will not be surprised if we eventually have to defend against a frontal assault on religious institutions that refuse to recognize and/or perform same sex ceremonies.
If a baker can be hauled into court for not making a wedding cake – a priest can be hauled into court for not officiating at a same sex ceremony – or for not offering a Sacrament to a same sex couple.
Given today’s ruling, it would have been smarter to have actively pushed government out of marriage entirely.
Five sacraments are administered by a priest òr bishop. Of the remaining two, Baptism can be administered by anyone. Matrimony is administered by the bride and groom and witnessed and blessed by a priest. This is taken from my Jesuit high school religion text dated 1924. (The Jesuits were more conservatve back then).
Basil, you look great for a 111 year old. You must never have been married. :)
Do you Catholics remember that the Church recognizes natural marriages as well as sacramental marriages? To argue over the sacrament is silly because the sacrament is not under fire. Natural marriage is what is under fire.
It’s added years to my life.
Well, Tommy, my posts crossed your sourcing. However, while I concede that you gave the sacrament to your wife, I do not concede that the sacrament is only between the two of you and God. You need the church in order to give the sacrament. You cannot give the sacrament or seal it with Gods grace without the church. You also cannot end or rescind the sacrament without the church. So your marriage and the sacrament involves more than your wife, yourself and God.
I agree that the Catholic definition of the Sacrament of marriage isn’t what is in question.
What worries me, Jennifer is that without a clear distinction between whatever structures the state recognizes for partnership, child rearing or estate matters and religious marriage, the latter is at jeopardy from the former.
That’s why I suggested on this site (last week, natch) that conservatives ought to have petitioned to ban straight marriage.
I herby nominate BThompson for a Ricochet Merit Badge for demonstrating civil discourse. Three cheers! God knows we need something to cheer today, right! :)
Some thoughts about this issue in this thread here.
http://ricochet.com/ban-straight-marriage/
The point about the form of the sacrament is to emphasize the importance of an outside party and how the definition of the union is independent of what the two (or however many are involved) deem their relationship to be.
That is, a government or church can set the definition of marriage however it sees fit. What someone who doesn’t fit that definition would like, shouldn’t necessarily bear on what the definition is.
The government had the authority to define a discriminatory institution. That one group thought the discrimination should take a different form which no longer discriminated against them but now only discriminates against others isn’t sound reasoning to make the change. The reasons for the institution and the discrimination matter, and who decides those reasons matter.
Tommy, thinks that letting people define marriage any way that is agreeable to those involved is a solution that will protect his marriage and society. I claim that is untenable.
If you are not talking about sacramental marriage, then I don’t understand what you mean by “religious marriage.”
Typically, I’ve noticed that the “get the govt out of mariage” crowd has a premise that I do not share: that marriage is nothing more than a subcategory under religious liberty.
Would a “get the government out of marriage” advocate please explain the following:
How do you deal with the contractual nature of marriage without getting the government involved? If Spouse A is unfaithful to or abandons Spouse B (notice my modern terms – I’m so with it) how does Spouse B sue for divorce and get any redress?
Simple. You handle any of these that *must* be handled at all via contracts.
Sound absurd?
Maybe.
You mention infidelity. Why does the government hold a position on that? I’m not speaking about abandonment which implies an abrogation of a financial commitment. I’m talking about cheating. If the state’s definition of “marriage” is blind to the gender of the parties – how can it care about their fidelity?
I’m not being coy here. What do you think it is?
I used that term to be inclusive of all non-secular / contractual notions of marriage and not just religions that have a concept of a sacrament.
Again, not being coy.
Silly me, I’m not as with it as I thought. I’m having a hard time keeping up with the rapidly evolving definition of marriage. The retrograde notion that fidelity was one of the things that distinguished a “marriage” from a “shack-up” is still with me but I will stamp it out so help me Gaia. Come to think of it, using the word “marriage” to describe a particular type of intimate relationship is no longer useful. From now on I will use…….”lazagna.”
Back to the original point. Lazagna is a contractual agreement that places obligations on both parties and legally merges their affairs. Since church and state are separate, who but the government can enforce the terms? If I leave the fair Mrs. J-lP in the lurch, our Orthodox Presbyterian church will frown and excommunicate me. However it is powerless to divide our assets – only the state can do that. Necessity dictates that I, my wife….er….Spouse B, our God, our church and yes, the State of Maine all have an interest in the status of our lazagna.
My thought is that civil unions should be registered with the state, and a registered civil union brings with it the legal protections for property, child custody and all the rest. Couples may also separately choose to be married in their respective churches. This would provide the govt oversight and legal protection for consenting adults to enter whatever ill-advised civil union they wish. It would also get the state out of religious unions and allow churches to retain control over what marriages they perform.
Okay, pile on and tell me what’s bad about this idea :)
This.
I find your compromise eminently reasonable and would support wholeheartedly – for same sex couples who represent a tiny sliver of the population. Forcing the rest of us, whose intimate relationships actually produce the next generation, to make changes to the institution that civilizes the little barbarians strikes me as the reverse of a just outcome.
It would actually change very little for people who would choose to get married in a church. Since the state must approve those marriages anyway in the form of getting a marriage license, it would be the same number of steps. I’ve always considered civil ceremonies to be more of civil unions, anyway, since they aren’t blessed by the church. There are an awful lot of people who aren’t gay who get married via civil ceremony for whom it would also apply.
I like this! Very helpful. (I thought Tommy’s response was helpful too, and interesting).
I don’t know—I’d be okay with this. I’ve performed weddings in which the legal wedding had, for various practical reasons, already taken place. Everyone, including bride, groom, families, friends nonetheless considered the real marriage to be the one conducted by the minister in the presence of God and These Beloved Witnesses. To be married, a couple had to be recognized as such by the community in which they lived—usually for their entire lives, meaning that the arrangement was supported/enforced by a whole lot of interested, nosy parkers. Civil Marriage probably needs to be in place because marriage needs to be portable and provable in a way that it probably didn’t (at least, not so much) in a smaller world. But marriage is still going to happen when your own community is informed of and accepts it as a working reality.
Incidentally, the church and “one’s community” tended to be more or less the same thing, too. That we now have people who get married in churches they otherwise have no relationship with (because they like the pretty windows) means they are, in effect, getting civilly married anyhow, they just happen to be standing in a place that exists because of religion, possibly by a person who might as well be a JP for all the importance the couple attaches to his/her religiosity. (Seriously— I have had the distinct feeling that I could have been replaced by a nun, a Baptist, a rabbi or a cardboard cut-out; the most important person awaiting the bride at the altar was the photographer. Yes, even more important than the groom.)
My wife insisted we get married in a church. For all that, it was more or less a civil (in a legal sense) marriage. Thirty-six years ago.
Thirty six years—wow! Nicely done!
We’ll never live long enough to make it to 50, I don’t think.
The way I “propose” marriage be handled, is exactly how it was handled for a few thousand years until 1753.
Who is the traditionalist here? I’m certain it’s me.
In 1753 government inserted itself into marriage formation and began destroying it b attaching other things to it that didn’t belong (taxes, insurances, etc). Then came the manipulation of races, etc.
You “keep the government involved in marriage” folks just loved the government power when that power sided with you. Now that it sided against you, you cry over government power today.
Hang your heads. You strengthened the state like a communist on a revolution binge.
Tommy the traditionalist. Let’s see how much Tommy embraces tradition. Although the act of getting married wasn’t something that officially involved the government until 1753, marriage itself was still very much a part of the governments purview. Prior to 1753 and for a century after that, divorce required an act of parliament. You see, the church and government were not completely separate and so church policy and government policy weren’t seen as strictly distinct. In fact, political alliances were often forged and sealed through marriage and by necessity involved the Church. The Church had sway over matters of state due to it’s authority over marriage. This intermingling of the sacrament with government during the golden era of marriage tradition wants to return to caused a bit of consternation and political disruption in the early 16th century if Tommy recalls.
So Tommy, you’re saying you want to force people to require an act of the legislature to get a divorce and for us to return to state established religions?