It’s not often that we get such a good comment on a blog that I feel the need to point at it (actually, it’s never happened before) but I feel as tho Pedro’s comment on Rob’s blog needed it’s own posting. So without editing anything, here is his retort:
Regarding your analysis of what government can or cannot do, I mostly agree with it. Where I disagree with you is with your analysis of history of marriage as well as some other statements you seem to imply.
From a historical standpoint marriage in most of the cases did not originate with religion, their social origins are many, but most of the time it has to do with something as elementary as men and women agreeing to live together, or with the distribution of wealth, or property, or it has to do with relationship with families and so forth. Most marriages originated with an agreement between a man and a woman to live together, and the state had nothing to do with that (nor religion). Sometimes the state intruded, but only regarding matters of justice given a social complexity. For instance, in many societies that accept these kinds of arrangements you will find some jurisprudence regarding the rights of men, women and children who constitute a family unit in some way. Even in ancient societies like the Celts, or in America (the continent) were very much like that.
I do agree though that marriage can be shaped by religion, as Christianity did shape the way marriage was carried out in Europe. However, we must point out that marriage is not itself a Christian institution. It existed long before Christianity, and it was seen as something foreign to it during the first centuries of Christianity. In fact, during the two thirds of the Middle Ages, the Church had little or nothing to do with marriage. It was strictly a civil matter. After the Lateran Council of 1179, when the Western Church consolidated its power within governments in Western Europe, that the Church became concerned about marriage in the quality of sacrament. The reason for this is that the union of Church and state during that part of the Middle Ages required priests and bishops to get into matters regarding wealth and how it is distributed to widows, to children, family relatives, and their relationship with the Church. After the Counter-Reformation, with the Council of Trent, the Church did require a priest to bear witness to the vows so that the Church (and Catholic states) can recognize it as valid marriage.
So, contrary to what you say, marriage is not necessarily a religious institution. Sometimes a religious institution does not recognize a marriage recognized by the state, and sometimes the state does not recognize a marriage that a religion does. Regarding gay marriage, the issue is with the state recognizing marriage, not religion.
My second disagreement with you has to do with the fact that the state *can* define what marriage is, regardless of what the origin of marriage might have been. Such a definition should not be in the constitution, though, but at a lower level. Under the law (and strictly from a legal standpoint) marriage is a contract … period. It is not a “divine” institution, it is not a “religious” institution, it is merely a contract. Sometimes, the state needs to define what kind of a contract it is, so that the state can recognize some rights to those who enter into the agreement. A married couple has rights that an unmarried couple does not have. Here lies the whole problem with gay marriage.
My apparent third disagreement with you has to do with the right of certain people to protest because the “people” made a decision and amended the constitution to ban gay marriage. That right is ultimately based, as you well state, on the natural rights of people which, from an ethical (objectively good) standpoint, should never be taken away in principle. The reason why the amendment was passed had nothing to do with ethics, but with morals (uses and customs). As I always repeat myself: sometimes what people hold as moral is not necessarily ethical. Almost all the arguments presented by those who oppose gay marriage have nothing to do with ethics, but with morals which can be secular or religious. One of the secular arguments goes like this: “family and marriage are fundamental for society and it is placed in danger if it is changed the way the GLBT wants it, those two social institutions are in danger.” Of course, this argument begs the question. In what way are both of these institutions in danger if gay marriage were recognized, other than the scenario presented by Lewis Black in “Red, White and Screwed”? Aren’t these institutions more in danger with all the reality shows about it out there? The other secular argument is that “marriage between man and a woman is natural, therefore we should preserve what nature has determined that should be”. But this is a “naturalistic fallacy”: just because something is regarded as natural does not mean that it is ethically correct, and if unnatural does not mean that it is ethically incorrect. Nature has not determined that we should take aspirin if we have a headache, but it is not an evil act.
We have also the religious arguments against gay marriage, but for a real democracy to last (as you well point out), these religious beliefs cannot be forced on everyone, since we must preserve the freedom to believe as we choose to believe regarding God, gods, or anything we think the afterlife is.
I agree with you that the amendment of the constitution to ban gay marriage is fundamentally baseless in a democratic society. However, my third discrepancy with you is the apparent statement you seem to make that because the people talk, then the people who were defeated by these amendment should not protest. On the contrary, they should protest, and keep their own campaign alive, until the time comes again to amend the constitution to guarantee rights for the GLBT community. Even when the courts upheld the amendment, and they are right from a juridical standpoint, the GLBT community has duty to express that such an amendment is simply not right, it does not matter how many times the majority decides it is correct.
– Pedro