Monday, May 16, 2005

Nebraska Anti-Gay Marriage Amendment Found Unconstitutional

I have seen a lot out there on the blogs regarding the recent decision by Judge, Joseph Batiallon, string down Nebraska's constitutional amendment defining a marriage as between one man and one woman (the decision). The amendment passed with an overwhelming majority of the Nebraska voters. I do not contend that the amendment was not the "will of the people." It obviously was. But, to this point, no one has produced a rationale to exclude gay marriage that is not based upon traditional religious tenets.

What is the difference between forbidding same-sex marriages and forbidding interracial marriages (Loving v Virginia)? What purely legal rationale can you provide me that gays should be excluded that does not also apply to couples of opposite-sex marriage?

H/T Maxed out Mama for the decision link


Anonymous said...

what reasoning, you ask?

perhaps the answer to that question can be found in explaining why marriages are governed by the state at all. what purely legal rationale can you provide that marriage should be a consideration of law? i'm thinking particularly of tax breaks and benefits.

you will have to consider history, tradition (religion), and the general will of people.

if anything, i tend to fall on into a view thinking the "benefits" given married couples might not be appropriate, while admitting there is more to the laws that govern marriage than only benefits.

but once you honestly understand why marriage is governed by the state (though i leave that answer for you to discover), then the "strange" restrictions may not seem so strange after all.

Dingo said...

Actually, much of the history of marriage being governed by the state stems from not religion, but basic contract issues.

Eg. historically, once women married a man, legally, she ceased to exist. Contractual rights and privileges all transferred to the man. You needed laws to deal with this. Additionally, you need laws to deal with the rights of inheritance and passing of wealth.

Once you remove all of the legal aspects of marriage, there is no need for the state to sanction marriage. And, if you are to leave marriage purely to the churches (as it should be) than there is nothing to say that any particular church cannot wed two men or two women because that would be unconstitutional to restrict their religious beliefs.

Anonymous said...

well, then, you see my point exactly. i do not find it odd that there are divisive restrictions to marriage laws, i find it odd that the state would see the need (these days) to govern them at all. so, if you are going to have a "screwy" law, why would you expect it not to seem a little strange or unfair to some?

Anonymous said...

another way to say that is, the rational to provide state control over marriages in the first place is contradictory to the principles that would allow gay marriage now. you might as well ask what rational view is there to include gay marriage that is based upon traditional religious tenets?

for instance, if during the "separate but equal" nonsense someone proposed "gay drinking fountains" or "asain only bathrooms", that might in the same strange way be considered equal, but clearly not desirable. you should not have separate drinking fountains or washrooms at all. but if you asked me to provide a reason why you shouldn't specifically have "canadian only drinking fountains", i'm not sure i could answer that question.

of course, as both you and i acknowledge, the "will of the people" -- based on religion or not, is and will always be a factor.