Monday, February 17, 2014

Yes, Virginia, Round Two

In the recent Virginia ruling, the text of the opinion begins with a quotation from Mildred Loving who was unjustly sentenced to a year in prison back when Virginia had a statute barring "whites" from marrying people who were "colored."  Judge Allen then goes on to make the hackneyed connection between interracial marriage and homosexual "marriage".  I don't want to spend much time hashing out all the relevant disanalogies between the two, so I will just say these two things about the matter: (a) criminalizing interracial marriages makes as much sense as criminalizing marriages between different cultures, different eye colors, etc.--that is, it makes no sense and (b) the Virginia anti-interracial marriage laws made interracial marriage a crime, it did not invalidate the marriage.  Rather, in criminalizing the act, it tacitly recognized the marriage because a "white" and a "colored" person can marry independently of state endorsement.  Marriage is a relationship that can be entered into prior to state recognition.  The Virginia law (unjustly) penalized interracial marriages.  But on the natural-law view of marriage, homosexuals cannot enter into a marriage (nor can humans and animals or humans and lampposts).  Homosexuals can love each other, they can get a legal "marriage" but they cannot marry.  There is no moral right to marriage between homosexuals because there is no pre-legal relationship, marriage, that can be entered into.  As such, Mildred's own statement about marriage, unfortunately, has flaws which Judge Allen is then able to put to rhetorical use. Comments below the fold on Mildred's statement:
"We [Mildred and her husband Richard] made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match. Isn't that what marriage is?"
What Mildred should have said was that marriage is a meta-legal commitment.  She and Richard were married regardless of what Virginia or anyone else says about the matter.  That's because marriage is a man-woman-till-death-do-us-part commitment of fidelity, it is not a legal commitment or contract.  People can marry on an island with no government and no laws.  A government can recognize a marriage or not, but a marriage is a relationship that can be formed apart from government (in this way it like friendship, the son-mother relationship, etc.)  That is why traditionally (sane) governments have recognized common law marriages where no church or government ceremony was ever performed.

"I have lived long enough now to see big changes. The older generation's fears and
prejudices have given way, and today's young people realize that if someone
loves someone they have a right to marry...."I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry.""
On either a "legal" or a "natural" right interpretation, both are false.  States do not recognize a legal right to marry between two persons who love each other.  States quite often have not recognized polygamy, a marriage between two first cousins, between an aunt and nephew, between a brother and sister, between a dolphin and trainer, etc.  Nor is there any natural right that holds on the condition that two people have a certain form of love for each other. 

Government has no business imposing some people's religious beliefs over others. . . . I support the freedom to marry for all. That's what Loving, and loving, are all about.
That government has no business imposing some  people's religious beliefs over others is partly a red herring, and partly it's false.  It's partly a red herring since there are and have been plenty of secular reasons for governments recognizing marriages only between one man and one woman.  It's partly false because in a democracy, majority rules, and if the majority votes on the basis of religious convictions then the government is bound to make laws which ultimately derive from the will of the people who happen to be basing their votes on religious convictions.  There is certainly nothing in the Establishment Clause forbidding it (a clause which applies simply to Congress), and the Free Exercise Clause seems to endorse it.  Regarding the "all"....well, that needs no commentary.

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