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February 7, 2012

Ninth Circuit Declares California's Proposition 8 on Marriage Unconstitutional

A panel ruled that a proposition to define marriage as between a man and a woman violates the 14th Amendment to the U.S. Constitution.

A federal appeals court ruled that California's Proposition 8 defining marriage as the union of one man and one woman is unconstitutional. A three-judge panel from the 9th Circuit ruled that California's state constitutional amendment violates the 14th Amendment to the U.S. Constitution. The 2-1 decision is likely to be appealed directly to the U.S. Supreme Court.

“Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples,” Stephen Reinhardt wrote for the majority. The opinion rejected arguments that the proposition advanced the state's interests in child-rearing, procreation, education, or religious freedom.

0207Prop8_L.jpg

Judge Michael Daly Hawkins (appointed by President Clinton) agreed with Reinhardt's opinion.
Judge Randy Smith (appointed by President George W. Bush) dissented, at least in part, to the majority decision. Smith said that Proposition 8 is “rationally related to a legitimate governmental interest” because it “preserves the fundamental and historical purposes of marriage.” However, Smith disagreed with proponents who said the state had an interest in promoting child-rearing by opposite-sex couples as the best family structure for children.

National Organization for Marriage (NOM) president Brian Brown said the decision “was as predictable as the outcome of a Harlem Globetrotters exhibition game.”

"We have anticipated this outcome since the moment San Francisco Judge Vaughn Walker's first hearing in the case. Now we have the field cleared to take this issue to the US Supreme Court, where we have every confidence we will prevail,” Brown said.

According to the panel, one of the key issues was that Proposition 8 rescinded the right to marry. The Court said that because same-sex couples were able to marry and then were prohibited from doing so, the purpose of Proposition 8 was to take away a right, which is different from not allowing same-sex marriage in the first place.

Bruce Hausknecht, judicial analyst at Focus on the Family, said in a statement, “Opponents of Prop 8 insist on changing the definition of marriage for everyone, including children who deserve the opportunity to grow up in a home with their own married mother and father.”

The panel, including Smith, unanimously rejected the legal argument that families should have a mother and a father.

“Plantiffs argue that the optimal parenting rationale cannot be a legitimate governmental interest because same-sex couples in domestic partnerships have all the substantive parenting rights opposite-sex couples in marriage enjoy. Additionally, California family law does not give any official preferences to opposite-sex parenting,” wrote Smith. “Proposition 8 does not change this factual situation.”

Smith agreed with the other two judges on one key point. The panel unanimously denied a motion to have the original opinion vacated. Judges rejected the argument from proponents of the proposition who asked that the original decision be vacated because Chief Judge Walker is gay and had a conflict of interest because he could now marry his partner.

Proponents of Proposition 8 can now appeal to either the full 9th Circuit or directly to the U.S. Supreme Court. It is widely expected that they will choose the quicker route and appeal directly to the high court.

Previous coverage of Proposition 8 and the courts include:

Why the Proposition 8 Decision Matters | That Judge Walker's ruling is not a surprise does not make it any less of a landmark. (Al Mohler, August 5, 2010)
What Is the Gospel Response to the Prop. 8 Decision? (August 9, 2010)
Prop. 8 Ruled Unconstitutional (August 4, 2010)

Comments

I don't understand the fuss. Show me any same sex union that can produce offspring barring procurement i.e. adoption and I will show you an environment proper for child rearing.

What else would you expect from that bastian of extreme liberalism? Their decisions have often been struck down by the Supreme Court as being kind of really out there.

Some are already suggesting that the Supreme Court could easily decline to hear an appeal of this decision, but I don’t think they can put off addressing the issue of marriage equality for Gay couples forever.

It’s the FEDERAL government that has made marriage equality for Gay couples a federal issue. MOST of the legal benefits and protections of marriage (including tax law and Social Security) come from the federal government, and there’s no good argument for denying law-abiding, taxpaying Gay couples the same legal status and benefits that Straight couples have always taken for granted, as the 14th Amendment would appear to stipulate.

There’s also that pesky “Full Faith & Credit” clause, under which any Straight couple can fly off to Vegas for a drunken weekend, get hitched by an Elvis impersonator, and that marriage is automatically honored in all 50 states. But because of the Defense of Marriage Act (DOMA), a Gay couple legally married in Iowa becomes automatically UN-married as soon as they travel across state lines.

So the SCOTUS can decline an appeal of THIS particular case, but there will be plenty of others, and eventually the Justices will have to tackle the issue. You can’t have a patchwork of 50 different marriage laws for Gay couples.

ALSO, before anyone starts screaming about "activist judges" who ignore the "will of the people": It is not the courts' job to uphold the precise will of the majority of the people. That's what elections are for. The job of the courts is to uphold the Constitution, regardless of whether the necessary decisions fall in line with the will of the majority. It is up to the judges to determine, without bias from the rest of the population, what constitutes equality under the law, or equal protection. It seems more than obvious to me that to exclude Gays from the institution of marriage is a clear violation of any notion of "equality," and I have yet to see anyone dispute that on a rational level. Therefore, it is not "activism" on the part of judges to declare that Gay and Straight couples should be treated equally under the law, rather it is an example of judges performing their rightful duty.

Gays are treated equally under the law. You can marry anyone of the opposite sex who will say yes to you - just like heterosexuals. But that is the way with heterosexuals, as well. I as a heterosexual cannot marry anyone I may want to - even if they say yes. For example, I cannot marry a nine year old girl, nor can I marry my mother or sister. I cannot marry two or more women even if they all say yes. Our culture has always accepted that marriage is between a man and a woman. Really, you are asking for more rights, not equal rights.

Our rights according to the Declaration of independance - our countrys FIRST Law states that our rights come from God. Not from the Constition. Nor from man ( this is a good thing for any thing man gives man can take away). God never gave two men the right to marry one another therefore there is NO such right! Moreover, homosexuals are not being barred from marrying. That is a lie! A homosexual man can marry a woman in all fifty states. A homosexual woman can marry a man in all fifty states so they are NOT being barred from marrying. They are being prevented from redefining what a marriage is! God Almighty created the institution of marriage way back in Genesis. Thats why its called Holy Matrimony. What God has created NO man has the authority to change! homosexual sex is an abomination, an affront to the Living God!

The comments from NOM and FOTF show they still don't understand that legal arguments must be based in REASON if they are to persuade. The court dissected all the arguments these groups offered against same-sex marriage and found NONE met that standard. People who base their political beliefs on religious dogma alone may object -- and they'll kick and scream and pout -- but 'Because the Bible tells me so' no longer counts as a legitimate reason to discriminate.

To Steve - the problem with your argument is this - human reason is corrupted by sin! And therefore cannot be trusted! Hitler REASONED that it was okay to kill 6 million jews and 50 million total in a world war. Certain Americans REASONED that it was okay to enslave millions blacks and kill Native Americans. One tribe in Rwanda REASONED that it was okay to murder millions of people of a rival ethnic group. Mao REASONED it was perfectly acceptable to murder 60 million people in his communist cultural revolution. Human reason is filthy, corrupt and evil. Only God can righteously decide what is right and wrong because He alone is good and worthy and true and uncorrupted! Glory to God Almighty the Lord Jesus Christ!

"The court dissected all the arguments these groups offered against same-sex marriage and found NONE met that standard."

contra

"U.S. Supreme Court again rejects most decisions by the U.S. 9th Circuit Court of Appeals
Judges in the circuit's nine Western states are more liberal than the high court justices, who reversed or vacated 19 of the 26 decisions they examined for the last term."

http://articles.latimes.com/2011/jul/18/local/la-me-ninth-circuit-scorecard-20110718

Yeah, well Steve, the SC of the USA says the 9th CCA's legal judgment sucks much of the time. Now that has got to really rub liberals the wrong way.

So it's a bad thing for the gov't to say that organizations claiming to be church connected to respect their employees enough to provide full insurance but it's a good thing for the gov't to stick it's face in couple's personal business. Small gov't hypocrisy at work. One is free to practice their religion in this country and most of us would fight tooth and nail to defend that, even if we don't agree with the specific religious belief. One is NOT free to use the courts and the law to enforce their religious beliefs, period. Marriage is not a gov't issue. A piece of paper from the gov't is a civil union, and as such should be free of religious influence.

Christians must begin thinking about, and praying about--and maybe even physically preparing for--the unthinkable: the judgment of God actually falling on the United States of America.

The states of California and Washington have fallen, and there's no guarantee that the US Supreme Court will reverse anything. With two new gay-marriage justices hired by Obama, the USSC may well go ahead and legalize gay marriage across the nation.

America's hedge is already down. Legalized gay marriage will lead to disaster for this nation.

Dan,

At present - you can't marry more than one woman or an underage girl. The push for poly-amorous marriages as well as lowering the age of consent are next on the agenda.

Christine - Personally, I think the push for polygamy will come first followed by polyamorous marriage then the lowering of the age of consent. When that happens Warren Jeffers will be released from jail and will have his own reality tv show. It'll be called "The Jeffers". "Good night Warren-boy. Good night...(add here the names of all 29 brothers and sisters) ;-D

David Newheiser, "Tradition, Novelty, and the Need for Discernment," The Living Church (29 Jan 2012), pp. 19-22. by David Newheiser | Papers by David

http://chicago.academia.edu/DavidNewheiser/Papers/1337673/David_Newheiser_Tradition_Novelty_and_the_Need_for_Discernment_The_Living_Church_29_Jan_2012_pp._19-22

re: David Newheiser, "Tradition, Novelty, and the Need for Discernment," The Living Church (29 Jan 2012), pp. 19-22. by David Newheiser | Papers by David

same old prog lib post mod horse hockey fit only to line the cages of the angry birds.

Dave writes: "Marriage is not a gov't issue. A piece of paper from the gov't is a civil union, and as such should be free of religious influence."

Half right. Governments should be free of religious dogmas, but marriage -- LEGAL marriage -- is entirely the province of the state. Legal marriage is a civil status that is codified by a state document called a marriage license. Without that state document there is no legal marriage.

You can have all the religious ceremonies and church weddings and sectarian spectacles and sacraments you want -- they have no legal significance. The only thing necessary for legal marriage is a document from the state. And state law is subject to the Constitution which grants equal treatment to all, not just to heterosexuals.

I think the Founding Fathers would disagree with your analysis as it relates to gay marriage. And of course the conservative/traditional Christian is in agreement with the Founding Fathers - unlike liberal, progressive, post-mods.

@Dan, not sure the Founding Father argument is the best one to use. Those were the same Founding Fathers who didn't give women or African-Americans the right to vote, correct? Is the conservative/traditional Christian in agreement with that too?
As to your other argument that those fighting for gay marriage are trying to get "more rights" not "equal rights," A homosexual won't have any more rights than you will if gay marriage is passed. You too will be able to marry any adult, non-relative you choose, just like them. I could marry a man or woman I love if I wanted. And you could marry a man or woman you love if you wanted. The fact that you would not apparently marry a man does not mean you would not have the right to.
Those advocating for gay marriage are not advocating for any more rights than you have/would have. They want the right to marry the person they love provided they are an adult and not a relative.
That is equal rights.

Josh, Given the logic implied in your comment one could make a case for legalizing polygamy, polyamory, incest, and beastiality. But in one sense you are right: the Founding Fathers argument is not the best - and I never said it was. I merely stated, "I think the Founding Fathers would disagree with your analysis as it relates to gay marriage." In reality, the Biblical prohibition of homosexual behavior is the best argument againt gay marriage.

Next time you're at the bottom of the Dead Sea, go ask the residents of Sodom and Gomorrah what THEY think of legalized gay marriage. I'm sure they've arrived at some conclusions by now.

@Doc A.- You nailed it!

I guess I'm going to have to say it one more time.

In light of the "establishment" and "free exercise" clauses of the First Amendment to the US Constitution, the government has no business getting involved in marriage as a religious sacrament. From a Constitutional standpoint, marriage is just one more type of legal contract, not essentially different from a mortgage contract or a contract to get a new-car loan. Consequently, the government has no more business saying that gay couples cannot be married than it has saying that gay people cannot buy a house or a new car. The "equal protection" and "due process" clauses of the 14th Amendment guarantee that gay people who are otherwise competent to enter into legal contract -- of majority age, not mentally impaired, etc. -- have as much of a right to enter into the legal contract known as "marriage" as they have to enter into the legal contracts known as "mortgage" and "new-car loan".

Furthermore, even if gay marriage were to be legalized nationwide tomorrow -- remember: there is no constitutional objection: see previous paragraph -- the right of religious organizations to grant or withhold religious sanction would remain unchanged. The "free exercise" clause of the First Amendment guarantees as much.

The gay marriage "issue" is the biggest non-issue to come down the pike in a long, long time. The "equal protection" and "due process" clauses of the 14th Amendment give gay people the right to enter into civil marriage, and the "establishment" and "free exercise" clauses of the First give religious institutions a corresponding right to react to gay marriages with equivalent freedom.

Finally, the only relevant document in this entire discussiion is the US Constitution, not the Bible. The "establishment" clause of the First Amendment prevents the government from writing religious doctrine into the civil law. So the gay marriage quote-issue-unquote poses a grave question to American society: do we take the Constitution -- specifically the 14th and 1st Amendments -- seriously, or do we not. The jury, so to speak, is still out on that one.

@Dan: Josh, Given the logic implied in your comment one could make a case for legalizing polygamy, polyamory, incest, and beastiality.

There is no constitutional impediment to making "poly" marriages legal in a civil / legal sense. Again, as with gay marriage, religious institutions and individuals would be free to adopt whatever policy their respective theological convictions dictate, given -- one more time! -- the "establishment" and "free exercise" clauses of the First Amendment.

As for incest and bestiality ... With incest, there are sound "compelling interest" arguments against incestuous marriages. Genetically, they do real, empirically measurable harm to the children. (However, there is no strictly constitutional objection to, say, a son marrying his post-menopausal mother. Biblical objection? Yes. Cultural objection? Yes. But not constitutional.) The bestiality objection is -- excuse my bluntness -- just plain silly. You are getting desperate here, Dan. Animals cannot enter into legal contracts simply because animals cannot give consent. In that respect, animals are in the same category, contratually, as minor children and the mentally impaired. Neither is competent for contractual purposes.

RE: Josh - "That the Congress that took office in 1865, the year Richmond fell, meant to elevate homosexual unions to the same moral plane as matrimony when it enacted the 14th Amendment is an absolute absurdity." - Pat Buchanan

@JC: "Animals cannot enter into legal contracts simply because animals cannot give consent." Silly? Really? But you are the ones who want to keep govt. out of it. Oh, you progressives are so inconsistent.

"...marriage is just one more type of legal contract, not essentially different from a mortgage contract or a contract to get a new-car loan."
That is your silly opinion not shared by the Founders.

The "equal protection" and "due process" clauses of the 14th Amendment give gay people the right to enter into civil marriage, and the "establishment" and "free exercise" clauses of the First give religious institutions a corresponding right to react to gay marriages with equivalent freedom.

(See the Buchanan quote above.)

To hijack a constitutional principle and then apply it to normalizing deviancy is what is silly, JC. You and the rest of the prog libs are the ones who are desperate.

Problem is that if you apply the "Buchanan Doctrine" consistently and use the original intent of the framers of the 14th Amendment as your guide, you will end up opposing racial integration.

Why?

Because the same Congress that wrote the 14th Amendment and sent it to the states for ratification is also the same Congress that mandated segregated schools for the District of Columbia. So schools -- and, by extension, water fountains, restaurants, rest rooms, etc. -- should still be segregated as to race.

Pat Buchanan might be up for that. Are you?

"...marriage is just one more type of legal contract, not essentially different from a mortgage contract or a contract to get a new-car loan."
That is your silly opinion not shared by the Founders.

Does that mean you are opposed to interracial marriage, too? The Founders were.

Thomas Jefferson warned against allowing what he called "the dead hand of the past" to be our guide to the future.

I think the Founding Fathers would disagree with your analysis as it relates to gay marriage.

They would also almost certainly disagree with most (all?) of us on this blog regarding the permissibility of interracial marriage, full civil rights (e.g., voting, serving on juries, etc.) for African-Americans, voting rights for women.

If we want to adhere with complete and uncompromising fidelity to the ideology of the Founders and Framers, we will have to turn the clock back in those areas, as well.

Show of hands now! Who's up for that?

PS -- Before you vote, might be a good idea to google up my Thomas Jefferson "dead hand" quote above.


"...the only relevant document in this entire discussiion is the US Constitution..."

Really? Seems like what is relevant is the way YOU want to interpret the US Constitution - not the document itself.

So, you want consistency, except when you don't want it.

By the way, the Framers had a way of updating the Constitution - amendments, I think. We did that about 150 years ago. That was for race. Homosexuality is not a race. Perhaps you'll support an amendment for "freeing the gays." Oh, wait. They're not enslaved.

[Your last post made no sense. There I said your opinion was silly that said "...marriage is just one more type of legal contract, not essentially different from a mortgage contract or a contract to get a new-car loan." To which you followed with: " Does that mean you are opposed to interracial marriage, too?" Forgive me if I don't see how one thought follows the other.]

I notice that -- so far -- none of the "anti" folks have quoted T. Jefferson about trembling for his country when he reflects that God is just and that God's justice will not sleep forever.

So ... I will preempt the discussion and proleptically note that, when Jefferson made that statement, he was referring to the discrete, specific issue of slavery, not to gay marriage or to morality in general.

I hope this post saves some time for all concerned ... :-)

[Your last post made no sense. There I said your opinion was silly that said "...marriage is just one more type of legal contract, not essentially different from a mortgage contract or a contract to get a new-car loan." To which you followed with: " Does that mean you are opposed to interracial marriage, too?" Forgive me if I don't see how one thought follows the other.]

Because you want, per the "Buchanan Doctrine", to use original intent in both cases. An originalist interpretation of the 14th Amend will give you segregated schools because the same Congress that wrote and passed the 14th Amend also segregated DC schools. That Congress interpreted the "equal protection" clause in such a way that they saw no conflict between "equal protection" and school segregation.

If you use an originalist interpretation of the 14th, neither will you.

Yes, the Constitution can be amended. But the authority of appellate courts, in particular, the Supreme Court, to interpret the Constitution has been established since the Marbury v. Madison decision of 1803. In that decision, Chief Justice John Marshall said quite bluntly "The Constitution means what the Supreme Court says it means". Period. Full stop.

If you have a problem with that, your argument is with Chief Justice Marshall and the Marshall Court, not with me.

And before you quote Thomas Jefferson you might want to know his feelings about homosexual behavior. Hey, here's a thought: let's ask him.
Me: Hey Tom.
TJ: Ahem. That is Mr. President to you.
Me: Sorry To...I mean, - sorry, Mr. President.
TJ: Can't you see I am busy, waiting. Okay, what is it you want, citizen?
Me: I have just a short question: what do you think of gay marriage?
TJ: Well, I'm all for it. As I recall, my wife and I were quite gay when we were married. In fact, that reminds me of the time...
Me: Excuse me Mr. President. That's not what I meant. I am asking you what you think about homosexual relationships.
TJ: What the heck are "homosexual relationships"?
Me: You know....when people of the same sex want to do...you know...the wild thing.
TJ: Excuse me! The wild thing? Oh, you mean "sodomy." What do I think about sodomy.
Me: Yeah, I guess.
TJ: Plain and simple: castration for a man; hole in the nose for a woman. [Death is too severe.]
Me:Really?
TJ: Really!
Me: Well, in 2012 sodomites want to be be able to marry each other. They and their advocates say your constitution provides for that "right".
TJ: It does? Where? Dude, that wasn't even on the radar screen (whatever that is) in the 18th century. How could they possibly...I mean, what justification...I mean...I'm speechless.
Me: I don't know. You'd have to ask them.
TJ: Pardon me while I roll over in my grave. Okay, then...now, let's think about this logically...You know...I don't even know what to say. I got nothing. I mean, it is so self evident: guys are meant for gals and gals for guys - if you know what I mean. But hey, this is above my salary level; maybe we should pray and ask God for a miracle to stop this craziness.
Me: Mr. President. Short reminder: you don't believe in miracles.
TJ: Uhhh...yeah. Right. Man, epic fail on my part.
Me: Word!
TJ: Hey, since you're here. When you get a chance, could you ask God to let me come to heaven.
Me: Okay, I'll see what I can do. Hey, God.
God: Yes.
Me: Can Thomas Jefferson come to heaven now?
God: Thomas Jefferson? (snicker, snicker) I don't believe in Thomas Jefferson (tee hee). And you can tell him I said that.

So there you have it. Thomas Jefferson's opinion on sodomy (aka homosexual behavior, and by extension, gay marriage).

There’s also that pesky “Full Faith & Credit” clause, under which any Straight couple can fly off to Vegas for a drunken weekend, get hitched by an Elvis impersonator, and that marriage is automatically honored in all 50 states. But because of the Defense of Marriage Act (DOMA), a Gay couple legally married in Iowa becomes automatically UN-married as soon as they travel across state lines.

Yes, excellent point. I also think it's the Article IV, sec. 1 / full faith and credit (FF&C) issue, if nothing else, that will send the gay marriage issue to SCOTUS.

However, it is worth bearing in mind that state legislatures can, for exigent reasons, assert a "public public policy exception" to FF&C. This actually happened in ... I think it was ... the 1840s when some states asserted a public policy exception to polygamous (Mormon) marriages. Historically, moreover, Federal courts have been extremely reluctant to curtail states' public policy exception prerogatives -- understandably so, as doing so would stir up a whole hornets' nest of 10th-Amendment issues, to say nothing of the cultural implications.

And before you quote Thomas Jefferson you might want to know his feelings about homosexual behavior. Hey, here's a thought: let's ask him.

No point. Mr. Jefferson's personal opinions about homosexuality were not written into the Constitution, nor could they have been, since he was in France when the Constitution was being framed. But even if he had been "present" at the creation, I expect he would have inveighed against his individual, idiosyncratic opinions being made a matter of law.

Wish I could say as much for Christians.

If you want to advance a constitutionally respectable case against gay marriage, you have to find an argument with the following characteristics:

(1) demonstrate that being gay constitutes a legitimate basis for asserting that gay / lesbian people are not afforded protection vis a vis marriage, by the "equal protection" and "due process" clauses of the 14th Amendment

(2) that the exception to the 14th Amendment asserted in (1) is based on real, tangible, demonstrable, empirically testable harm, either to gay people themselves and / or to society as a whole

(3) finally, both (1) and (2) have to be founded on reasoning that is completely "religion-free" in the sense of not depending for their validity on one's interpretation of any religious text -- Bible, Qu'ran, Upanishads, etc. -- or of any interpretation of a religious group's theological convictions.

Point (3) is especially important, because the "establishment" clause prohibits the government at any level from writing theological and religious precepts into law. "In God We Trust" and like expressions are not counter-examples, because, e.g., in the case of "In God We Trust", the nature and attributes of "God" are carefully, and deliberately, unspecified. Same is true of all "cultural" expressions of religion, e.g., the customary "God bless America" that usually closes presidential speeches: words like "God" and "faith" are just cultural place-holders, not statements of specific theological / religious conviction.

Most of the time, people who object to gay marriage advance arguments that fail on (at least) points (2) and (3). IOW, their arguments boil down to an advocacy for writing specific, confessional, sectarian theology into civil law. I'm tempted to say "all their arguments" in the previous sentence. I don't go that far because I am not familiar with literally all attempts to formulate an argument against gay marriage based strictly and exclusively on the Constitution. I am, however, willing to say that all such attempts I have seen so far, including the attempts on this blog, are thus flawed.

Note that, regarding point (1), the applicability of the "equal protection" and "due process" clauses of the 14th Amendment is to be presumed, not demonstrated.

IOW, the burden of proof and argument is on the person who asserts that the 14th Amendment does not apply to gays and lesbians, not on people like me who say the 14th does apply.

Think of this as an interpretive analogue of the principle of "innocent until proven guilty".

"Chief Justice John Marshall said quite bluntly "The Constitution means what the Supreme Court says it means"." Hmmm. There's the rub: knowing what the Constitution means. [And how many times has the SC reversed itself? "... in the years 1946–1992, the U.S. Supreme Court reversed itself in about 130 cases". So much for stare decisis] But so far you have only told us what you [progressive liberals] think it means. Conservative scholars disagree. Now, let me ask you a question: when the USSC hears this issue and if they return a "NO constitutional right for same sex marriage", will you and the prog lib minions accept the SC's god-like decision [after all John Marshall said...], and let it go? Let us know when that happens.

Conservative scholars disagree. Now, let me ask you a question: when the USSC hears this issue and if they return a "NO constitutional right for same sex marriage", will you and the prog lib minions accept the SC's god-like decision [after all John Marshall said...], and let it go?

Would I disagree with such a decision? Yes. Would I accept it, notwithstanding? Yes. Why? Because I respect the Supreme Court and, most of all, the Constitution.

Can you say as much? Especially if the 9th Circuit's ruling is upheld.

Yes, of course, the Court has reversed itself on many occasions. It decided Dred Scott v. Sanford and said "A negro has no rights that a white man is bound to respect". Then along came Plessy v. Ferguson in 1890something, and the principle of "separate but equal was upheld".

Brown v. Board of Education overturned those 2 decisions, plus a whole host of other pro-segregation rulings (e.g., Cumming v. Richmond County Board of Education, Berea College v. Kentucky, et al.).

From your post and your opposition to the Supreme Court changing its interpretation of the Constitution, then, I take it you favored the pro-segregation stance and opposed the change in Brown on the grounds that the Brown decision was a change.

But regardless ... yes, societies change, societies' attitudes toward and interpretation of the law changes. It is religion and religious dogma that never changes ... until it does, at which point a new denomination starts, whereupon that denomination stoutly denies that the Bible's teachings -- by which the denomination means its own sectarian interpretation of the Bible -- never changes.

"All rivers flow to the sea, but the sea is never full".

BTW, I guess I should also say that my 3 points of constructing a constitutionally sound argument against gay marriage and the applicability of the 14th Amendment to gays and lesbians is by no means whatsoever original with me. On the contrary, it is the customary way of arguing a "contrarian" case for civil rights, i.e., that a certain group does not have constitutional protection of some type or other.

The usual practice is to always assume that a given right -- equal protection, free speech, etc. -- does apply until a cogent "compelling interest" argument demonstrates that that right does not apply.

It is interesting that opposition to gay marriage, with some Christians, is predicated on an opposition to changing interpretation of the Constitution.

That is exquisitely and bitterly ironic.

If it were illegitimate to change interpretations of the Bible, then most Christian denominations would not exist.

IOW, the very process of changing interpretations, which they oppose so strenuously with the Constitution, is the very reason their denominations and sectarian traditions exist in the first place.

Prohibit interpretation of the biblical text, and the Methodists, Baptists, Presbyterians, Anglicans, etc., etc., etc. would all vanish like the morning mist.

The further irony is that interpreting a divinely ordained text like the Bible is unremarkable, even customary, whereas interpreting a merely human document like the Constitution is taboo.

Go figure ...

I'm nowhere near old enough to remember the women's suffrage movement. If I did that would make me close to 100 years old. But I have read a lot about it, including the history of, and biblical justifications, for (many, not all) Christians' initial hostility to the idea of allowing women to vote.

We today consider those biblically based arguments risible. E.g., there was the argument that said that when a man and a woman were married, the two "became one flesh". Since the husband was the "head" of the wife, the argument continued, the husband was that one flesh. Consequently, it was the responsibility of the husband to cast a single vote on behalf of both himself and his wife. So because the 2 were "one flesh" and because the husband, as the head, was that "one flesh", women should have no right to vote.

I predict that in a generation, perhaps less, biblically based arguments against gay rights, including marriage, will be regarded similarly.

The good news is that we all learn by experience. The bad news is that we have to.

"No point. Mr. Jefferson's personal opinions...."

And yet you like to quote him...until you don't like his quotes. Then you don't think he counts. So you like him - until you don't. You prog libs are so, so, so, predictably inconsistent.

So far your little treatise here on constitutional "law" - at least what you wish it meant - is unconvincing.

I wonder, too, if Justice Marshall would agree with your interpretation of those specific amendments and clauses from the Constitution which you quote with such profound certainty? Pure speculation on my part, of course, but I think he would say the prog lib position is laughable. Wait, don't tell me: "No point...something, something, something, gay marriage, something, something, something, complete."

"What source were you quoting for the Jefferson parts of your dialogue? I'd be interested to know."
Probably the same source you used for your fanciful interpretations of the constitution - the place from which all fiction comes: the imagination.

"Because I respect the Supreme Court and, most of all, the Constitution."

Which interpretation of the constitution? Because your constitution moves with every cultural wind. It never stays still. It means one thing one year and something else the next.

"But regardless ... yes, societies change, societies' attitudes toward and interpretation of the law changes."
So if society later changes its collective mind and decides gay marriage should be unconstitutional, you'd respect that? Where is your - the progressive liberal collective, that is - moral center? Looks like to me you lick your finger and hold it up to see from which direction the prevailing moral winds blow. Good luck with your relativistic hermeneutic James R. Cowles. It will come back and bite you someday.

"When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean -- neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master - - that's all."

Hmmm. Apparently the prog libs can, Alice. Apparently the prog libs can.

And yet you like to quote him...until you don't like his quotes. Then you don't think he counts. So you like him - until you don't. You prog libs are so, so, so, predictably inconsistent.

But the point I was attempting to make ironically was that, unlike you, I was actually quoting Jefferson. By contrast, your conversation with him exists only in your imagination.

Probably the same source you used for your fanciful interpretations of the constitution - the place from which all fiction comes: the imagination.

You give me 'way, 'way too much credit, Dan. The interpretation I gave of the 14th Amendment in relation to the gay marriage issue and of the 1st Amendment in relation to the freedom of religious institutions vis a vis gay marriage ... those are not my interpretations. I agree with those interpretations wholeheartedly. I think the 9th Circuit got it right.

But the interpretations of both Amendments in relation to gay rights are the interpretations of the appellate court -- in this case, the 9th Circuit -- not mine.

I have read the Perr v. Brown (a.k.a. Perry v. Schwarzenegger) in detail. I recommend you -- and everyone else -- do the same. If you had actually read Perry, you would know quite well that the interpretations are not mine.

Which interpretation of the constitution? Because your constitution moves with every cultural wind. It never stays still. It means one thing one year and something else the next.

I think I'm finally beginning to understand the nub of your problem with the Constitution and with the interpretations thereof. Your problem seems to be twofold.

(1) You want the text of the Constitution to be like the text of the Bible -- or like you think the text of the Bible is: absolutely unchanging with no room for ambiguity or interpretation. Well, the Constitution is not like that. Yes; the Constitution has been interpreted differently in different historical periods. At one time, it was interpreted to mean that slavery was OK. Ditto racial segregation. Now it is not.

Since you never dealt with this point before, I will repeat it here. If the Constitution can never be reinterpreted, then we would still be stuck with segregation by race.. Would you prefer that? You have 2 mutually exclusive choices. You can stick with your single-interpretation take on the Constitution. But then you have to advocate in favor of racial segregation. Or you can say integration -- and a whole host of other practices -- is a good thing. But then you have to say that it's a good thing the Constitution can be interpreted differently at different times and under different conditions.

Aside from that, if you say interpreting the Constitution is a bad thing, then you have to come up with a good argument against the practice if judicial review -- SCOTUS declaring laws unconstitutional -- which has been settled law since Marbury v. Madison in 1803.

(2) But you have an even worse problem than (1). The Constitution, brilliant as it is, is still an imperfect document, only a creation of fallible human beings. Yet, as a Christian, I assume you believe the Bible is a perfect, Divine document. But whatever denomination of Christianity you adhere to originated from a new interpretation of the Bible -- a circumstance you apparently have no reservations about. That is, after all, how the various Chrisrian denominations originated: someone's novel (at the time) interpretation of the Divine text of the Bible.

So something is backwards here, 180 degrees backwards. You object to multiple interpretations of the Constitution -- a flawed, imperfect work of flawed, imperfect human beings -- but take for granted, even approve of, multiple interpretations of the Bible -- the very text you believe to be the inspired Word of God.

If there is no problem with interpretations of the inerrant Bible evolving over time, then why are evolving interpretations of an imperfect human document problematical?

Surely if multiple evolving interpretations of the Bible are permissible, multiple evolving interpretations of the Constitution must be no less so.

So if society later changes its collective mind and decides gay marriage should be unconstitutional, you'd respect that?

Sure ... If SCOTUS should overturn the 9th Circuit's ruling -- something I would not bet money against, BTW -- I would disagree, I would howl like a banshee, I would work to ensure gay rights in other areas. But would I abide by the decision? Sure. Absolutely.

Where is your - the progressive liberal collective, that is - moral center?

I could ask you the same thing ... but there's little point in doing so, since you haven't answered the question the other 2 times I've asked it.

You say the Constitution is never supposed to change, and that the original intent of the Framers should remain constant.

That being the case, do you still believe schools should remain racially segregated?

You would have to answer "yes" to that question, because, according to your own principles, you would have to believe that the Supreme Court acted improperly by changing the interpretation of the Constitution from the interpretation that prevailed under Dred Scott and Plessy, and that prevailed when the 14th Amendment was first passed.

Basically, you are saying that any change in the interpretation of the Constitution is an incorrect and invalid interpretation. That would leave us with segregated schools and laws against interracial marriage would remain on the books.

But what's the point? You haven't dealt with this question the other 2 times I've asked it, and you still too scared of the implications to deal with it now.

My exchange with Dan confirms my long-standing belief that most Christians -- I said "most", since I have met a few exceptions -- really do not understand the meaning of the Constitution on matters like free speech, equal protection, due process ... IOW, most Christians -- again, I said "most", not "all" -- do not understand the principles of a truly free society.

Also, most Christians -- in fact, most Americans -- do not really understand their own Constitution and the full implications of the First and Fourteenth Amendments.

More specifically, the more conservative a Christian is, the more likely they are to believe in a free society ... but only as long as the freedom afforded is consistent with and supports the moral principles held near and dear by conservative Christians. When it comes to things like rights for gay people, rights of minority religious groups (especially Muslims in this day and age), and the degree to which government intervenes in the lives individuals to shape their (individuals') behavior -- when it comes to those issues, what conservative Christians really want is for the government to write the theological beliefs and moral principles of conservative Christianity into the secular law. They do not understand that faithfulness to the "establishment" clause of the First Amendment prohibits the government from doing so. Nor do they understand that, e.g., the "equal protection" and "due process" clauses of the 14th Amendment protect the rights of even people whom they (conservative Christians) deem morally repugnant.

Basically, conservative Christians believe sin -- defined as they idiosyncratically understand it -- has no rights.

Several months ago, my wife and I were at a dinner party when, for some reason, the table-talk turned to matters pertaining to the Constitution. The conversation segued into the history of how the Bill of Rights got added. I remarked that, if the Bill of Rights were to be proposed today as a referendum or plebescite question, I seriously doubted that it would pass. There was a hushed silence at the dinner table. One dear lady asked in a tiny voice "But why?"

I just told you why.

The issue I continue to struggle with, and to which Dan gave me no clue, is why it is apparently OK for reformers to reinterpret the Bible so as to justify the founding of a new Christian denomination, yet it is not OK for the Supreme Court to reinterpret the Constitution.

At last count, I forget the exact number of Christian denominations, but it was either in the high single digits or low 4 digits. Even the most conservative of Christians contemplate this situation without so much as twitching an eyelash. Furthermore, they evince this complacency despite the fact that the document being reinterpreted is, they believe, the divinely inspired, supernaturally originated, inerrant Word of the Most High God. But notwithstanding, nothing seems problematic in the way various reformers and denominational founders down through history have reinterpreted, "re-exegeted", and "re-hermeneutec" this Sacred Text so as to further the reformers' own (often quite justified) theological and ecclesial agendas.

But now, along comes a flawed, imperfect document, the US Constitution. (If you want an excellent summary of the flaws in the Constitution, read The Failure of the Founding Fathers by Prof. Bruce Ackerman of Yale Law School.) Suddenly, it is this purely human, fallible, imperfect, often awkward document that becomes sacrosanct and that must be preserved from any judicial group's hermeneutical meddling -- not the Divine Bible, but the very human US Constitution.

So my question remains: given the divinity of the former text and the fallibility of the latter, why are conservative Christians never upset that the Bible has been reinterpreted many hundreds of times, and instead become incensed when the Supreme Court reinterprets the Constitution in ways that do not suit them?

Passing strange ... passing strange ...

but it was either in the high single digits ... should read "but it was either in the high triple digits".

U.S. Supreme Court again rejects most decisions by the U.S. 9th Circuit Court of Appeals
Judges in the circuit's nine Western states are more liberal than the high court justices, who reversed or vacated 19 of the 26 decisions they examined for the last term.
July 18, 2011|It was another bruising year for the liberal judges of the U.S. 9th Circuit Court of Appeals as the Supreme Court overturned the majority of their decisions, at times sharply criticizing their legal reasoning.

(LA Times)
http://articles.latimes.com/2011/jul/18/local/la-me-ninth-circuit-scorecard-20110718

Apparently, I am not the only one who disagrees with your legal reasoning. SCOTUS doesn't either. But your interpretations are based on a particular worldview the outgrowth of which includes your legal reasoning. Now your worldview it not a Judeo Christian worldview and as you know the Constitution was created within a culture mightly influenced by a Judeo Christian worldview. And herein lies your problem and frustration - you are trying to put a square peg into a round hole. So what is a prog lib post mod like you to do? You play word games knowing all along your foundation is the shifting sand of relativism. Hence, your bravado. May I say it one more time but more bluntly, James: SCOTUS most likely sees your legal reasoning as flawed. John Marshall would have, I'm sure; Thomas Jefferson as well. The framers of the Constitution in all liklihood would have been highly offended by you and your ilk for desecrating their work for such immoral purposes. But continue on in your relativism. I would say you wasted a good deal of time in commenting here. You have not persuaded me as I know your presuppositions and how in the end even those are not above questioning. Good luck, James.

Now your worldview it not a Judeo Christian worldview and as you know the Constitution was created within a culture mightly influenced by a Judeo Christian worldview./i>

"Influenced by", yes, but the Framers took explicit care not to write a particular theology or denominational tradition into the text of the Constitution. Go read the "establishment" clause of the First Amendment sometime.

You play word games knowing all along your foundation is the shifting sand of relativism.

Again -- you have again not dealt with this point -- the same thing could be said of the various interpretations, re-interpretations, and re-re-interpretations of the Bible that have produced the hundreds of Christian denominations. So if interpreting and re-interpreting the Constitution renders invalid judicial decisions, then for the same reason -- which you repeatedly fail to acknowledge -- the interpretations and re-interpretations of the Bible for the same reason render invalid the entire Protestant religious tradition, and all denominations based thereon.

But I can understand why you are afraid to deal with this issue. In your place, I would be similarly terrified.

Hence, your bravado.

What you see as "bravado" I see as reasoned, temperate, and rational argument -- admittedly based on the text of the Constitution instead of the Bible. Furthermore, this kind of reasoning is the kind of reasoning any first-, or at most second-year law student is capable of.

If you follow your anti-interpretation principles with consistency, you will end up opposing racial integration, inter-racial marriage, etc. -- in which case you will need "good luck" much more than I.

But, of course, you haven't dealt with those questions either, and again, I do understand the fear behind your reluctance.

I thought we were "discussing" the Constitution, James - not the Bible or theology. You yourself said "the only relevant document in this entire discussiion [sic] is the US Constitution, not the Bible." So why keep bringing that old, antiquated text up? Threatened? [Hmmmm. 'twas strange, 'twas passing strange;'Twas pitiful. 'twas wondrous pitiful,..."] Now if you would like a Bible lesson I can surely direct you to any number of able expositers on the web of any theological stripe. Just ask. But my focus has been more narrow. I question your foundational principles, your presuppositions. And you apparently don't want to clarify those. [And I know why.] So to get there all I have done is simply again and again point out to you that the original writers - flawed men in your words, true - wrote a flawed document (true again) and yet to use their document, twist the wording in support of legal decisions never even remotely intended - even in principle - is disingenuous at the very least yet something progressives - eg 9th Circuit Court - are wont to do frequently. Hence SCOTUS' repeated smackdowns. And since you identify yourself to be in sympathy with the 9th CCA, I presume you feel somewhat irritated - a sting to the ego, so to speak - that your scintillating legal reasoning is given short scrift by those on the highest court of the land. Ouch! Now you have asked me for mine - but I am not the one quoting and interpreting the law - you are. You present yourself as Legal Eagle, JD. So, as one unschooled in the law, I'm just asking for your presuppositions, that's all. Is it because your foundational beliefs, your presuppositions will reveal the true nature and origin of your flawed legal reasoning?

You insist on missing the point, don't you?

The point is that, if it is wrong to interpret and re-interpret the Constitution, as you seem to think, then it should be even more wrong to interpret and re-interpret the Bible. Why? Because the Constituton is only human, whereas the Bible is Divine. You want to treat the Bible more casually than you treat the Constitutiom m

At least, I assume you believe the Bible is Divine. if you don't believe the Biblr is Divine, please correct me m

I honestly don't know how to make it any simpler than that.

"The point is that, if it is wrong to interpret and re-interpret the Constitution, as you seem to think, then it should be even more wrong to interpret and re-interpret the Bible."

But I thought you said the only relevant document here is the Constitution, James. That is until it isn't. Then it's whatever James wants to be relevant. Hubris alert! You prog lib post mods are all alike. Desperate to keep up appearances of being reasonable and thoughtful until the nature and origin of their presuppositions are exposed. Then they look and sound silly. Remember, James, SCOTUS, like myself, thinks your legal reasoning is flawed much of the time. That's got to sting. Ouch. Well, good luck, James.

Hey, one more thing, James, when you want to discuss the bible, I'd be glad to discuss it with you. But I got to tell you, man, the only relevant document in discussing the Bible is...you got it: the Bible. ;-D

I'm trying to point out a basic contradiction / inconsistency in your attitude toward the whole process of interpretation.

The question is: is it legitimate to interpret and re-interpret texts?

In the case of the Constitution, you seem to be saying "No, it is wrong to interpret and re-interpret the Constitution".

So then I ask, with regard to another important text, the Bible: is it legitimate to interpret and to re-interpret the Bible?

You seem to say "Yes, interpreting and re-interpreting the Bible is OK".

The issue is the legitimacy of the interpretive process at this point. I've demonstrated conclusively that, when it comes to deciding constitutional issues, yes, the Constitution is the only relevant document. That has been decided. On that subject, the train has left the station.

What I'm trying to get at now is the contradiction in your view of the integrity of the process of interpretation itself, and to do that I'm asking about your opinion of whether it is OK to interpret the Bible in order to make that comparison.

The bottom line is that, if you say it is OK to interpret and re-interpret the Binle -- as various reformers have done for 500 years -- then logically you have to say that it is also OK to interpret and re-interpret the Constitution.

OTOH if it is not OK to interpret and re-interpret the Constitution, a human document, then it ought to be even less OK to interpret and re-interpret the Bible ... in which case the work of the Reformers in re-interpreting Scripture was in actuality an act of sacrilege, not courage.

You cannot separate the interpretive process by puting the act of re-interpreting the Constitution over here and the act of re-interpreting the Bible over there, as you seem to want to do.

James Cowles said this: "the only relevant document in this entire discussiion is the US Constitution, not the Bible"

But then later James Cowles said this: "So then I ask, with regard to another important text, the Bible..."

[Spoken like a true lawyer.]

I can hear that dear little lady you spoke of earlier again asking why.

Because James R. Cowles said so. That's why!

Oh, btw, James since you prog libs so easily dismiss the original intent of the Constitution reinterpreting it as you go and applying its principle to issues the framers would have eschewed, I have decided to follow your example. I am going to reinterpret what you said earlier, too. I figure if you can do it, so can I. I am going to hereafter say that what you said above actually means now that James R. Cowles is an Evangelical Bible believing, Bible teaching, Bible preaching, saw-dust ailes running, pew hopping Holy Ghost filled prophet of God. Sounds impressive to me - well, not really - but it is in keeping with how you change the meaning of the Constitution. After all, James, times change, and so we must meet the needs of the present.

James said this: "most"...really do not understand the meaning of the Constitution on matters like free speech, equal protection, due process ... IOW, most Christians -- again, I said "most", not "all" -- do not understand the principles of a truly free society." Quite the Constitutional expert, James; yet, is he?

And yet SCOTUS did this in 2011 to the friends of James at the 9th CCA's: "It was another bruising year for the liberal judges of the U.S. 9th Circuit Court of Appeals as the Supreme Court overturned the majority of their decisions, at times sharply criticizing their legal reasoning." SMACKDOWN! Now, since James has hitched his wagon to the 9th CCA I guess what the highest court in the land said of the 9th applies to James as well. double-SMACKDOWN!

So apparently the highest court in the land doesn't think you and your friends in the 9th CCA's understand the Constitution very well either. Welcome, bruh, to the community of the great unwashed. So pull up a stool, grab a banjo and join in on Foggy Mountain Breakdown. But b'for ya do, park that thar funny lookin' Prius back out behind the barn next to my Massey Ferguson. Keerful, now ya don't cut yer foot when ya come back to the house. Them ol' cows been on the green alfalfa - iffen ya know what I mean.

(OAN: Funny , James didn't want to bring the Bible into the conversation - i.e. until he did want to. So typical.)

Dan shares with a lot of conservatives a very naive view of "original intent", and also gravely underestimates the difficulty in determining original intent. How is original intent determined / ascertained? Well, determining what the Framers originally meant by a given passage in the Constitution is like any other topic of historical research. You go to the historical record. In the case of the US Constitution, that would involve reading the writings of the Framers, including their correspondence. Reading the sources that they used, e.g., Montesquieu, Blackstone ... even writers from classical antiquity like Cicero. If debate transcripts exist, you read those. You read the writings of people -- journalists, commentators, etc., etc. -- who were not involved directly in the writing of the text under consideration, but who were acquainted with the various personalities and issues.

Basically, determining original intent is like any other act of historical scholarship, in that it precipitates you into an ocean of documents of various forms -- hundreds of documents, certainly, even thousands.

Determining original intent is a matter of dealing with texts, texts, texts, texts, texts, texts, texts, and when you are done dealing with all those texts, you begin dealing with ... guess what ... even more texts.

But the point is, you are always -- ALWAYS -- dealing with texts.

And what do you do with those texts? You do with those texts what you do with any other text, biblical or secular, legal or scientific, fact or fiction: you INTERPRET the texts.

The point I am making, and probably belaboring, is that an emphasis on original intent DOES NOT EXCUSE YOU FROM INTERPRETING TEXTS. It merely gives you more texts to interpret ... a lot more.

Does that mean "originalism", as it is called in the literature, is not a good way to interpret the Constitution? Of course not. Sometimes, in fact, originalism is just the common-sense way to determine the meaning of the Constitution.

My point is not that "originalism" is "bad", but that:

(1) originalism is just one method of interpretation among many, and
(2) no way of reading the Constitution -- or any other text -- enables you to dispense with interpretation.

At the end of the day, you always end up interpreting any text: the Bible, the Constitution, the latest Tom Clancy novel, or the grocery list your spouse gave you this morning.

In the final analysis, the very process of interpretation is what makes a text a text. Get rid of interpretation, and the text perishes with it.

Just to clarify: I am not saying that it is wrong to advocate for a given public policy from religious motivations. But the "establishment" clause demands that, in addition to and in parallel with the specifically religious reasons for the policy, there must be in addition a non-religious (not to say anti-religious) justification for that policy.

For example: it is quite legitimate for people to advocate for programs to feed the poor, give them temporary shelter, and help them find a job, because Jesus commanded that kind of care for our fellow human beings. But in addition one needs to be able to point to compelling secular and non-religious reasons for feeding the hungry, sheltering the homeless, etc., etc., reasons like keeping the crime rate down, making sure kids are taken care of, avoiding the social pathologies that result from chronic homelessness, joblessness, and hunger.

With respect to gay marriage ... It is quite OK to say that one is against gay marriage for religious reasons. The "free exercise" clause of the First Amendment gives you the right to have those kinds of religious reservations against gay marriage, and the "abridgement" clause gives you the right to express those sentiments.

But ... if you are going to argue against extending 14th-Amendment "equal protection" and "due process" to gay / lesbian people, including the right to marry, you have to be able to cite secular, non-religious, non-sectarian reasons why gay marriage is bad. You can't just say "Well, gay marriage is bad because the Bible says it is bad", because -- even if the Bible said gay marriage was bad -- the fact that the Bible says gay marriage is bad is, in and of itself, not sufficient reason to prohibit it.

Why? Because -- for the 226753512th time -- of the "establishment" clause of the First Amendment. That clause prohibits the government from writing religious doctrine -- Christian, Jewish, Muslim, Buddhist, Hindu, etc. -- into the law of the land. It is all well and good to have convictions about law that are religiously based, but even if those religious convictions are well founded, if one's only reasons are religious, that is not sufficient reason to enact those convictions into law.

Nor is that my own, individual, idiosyncratic interpretation. Ask any lawyer or judge, and you will get the same answer, perhaps paraphrased differently, but boiling down to the same principle.

Most conservative Christians -- I'm tempted to say most conservative religious people generally -- do not understand that distinction. They are under the impression that if the Bible says X, then it is OK, maybe even mandatory, to write X into secular / civic law. They don't understand the differece between a religious theocracy like Iran or Saudi Arabia and a secular republic like the US.

The fact that you cannot use religion as sufficient reason to justify secular policies -- IOW, separation of Church and State -- is what sets us apart from all such religious dictatorships in the world.

May it always be thus.

A few posts ago, I mentioned that the Constitution is an imperfect document, and that interpreting the Constitution is absolutely unavoidable -- just as interpreting any other text is unavoidable.

If anyone is interested in reading further, I suggest the following sources:

The Failure of the Founding Fathers by Prof. Bruce Ackerman of Yale Law
The Invisible Constitution by Prof. Laurence Tribe of Harvard Law
The Living Constitution by Prof. David Strauss of ... I believe ... Univ of Chicago Law
A Constitution of Many Minds by Prof. Cass Sunstein of ... I seem to recall ... Berkeley Law
Designing Democracy: What Constitutions Do by Prof. Cass Sunstein

The subtitle of Sunstein's book is interesting: "Why the Founding Document Doesn't Mean What It Meant Before", as is the title of chapter 1: "There is nothing that interpretation just is"

Prof. Ackerman's book is a magnificent case study in the imperfections of the Constitution: the chaotic election of 1800. I read it 5 times, the first 2 times staying up until the wee hours of the morning, because I couldn't put it down.

Regarding Church-State separation ... While the phrase itself never occurs there -- it is actually taken from a letter of Thomas Jefferson -- it is like the doctrine of the Trinity in that, while the phrase "separation of Church and State" never occurs in the Constitution, the principle is there, just in different words.

Where?

Again ... one more time! ... in the "establishment" clause of the First Amendment, which forbids the establishment -- by civil law -- of an official church of a body of official theological doctrine.

IOW, the state is to stay out of the religion business.

That is the principle of separation of Church and State, just not using those 5 words.

The government may not establish a religion or a religious institution, nor may it give to any religious institution any kind of preferential treatment. In relation to the government, all religions are to stand on a level playing field, no religion or body of religious doctrine holding government sanction or preeminence over any other.

How do I know that?

Simple: because I own and use a dictionary, and the paragraph before "How do I know that?" is what it means, gramatically and lexically, to "establish" a religion, and therefore what it means to "establish" a church.

If I say "2 + 2", then I have said "4". "2 + 2" is just "4" under a different representation.

You're majoring on the minors, Dan.

Now that I've explained that to you, how about returning my favor and answering my interpretation question.

Meanwhile, back at the Obama ranch, he and his gay-activism pal Eric Holder have just finished another big push towards legalized gay marriage. Lase week, they publicly declared that the so-called Justice Department will abandon a military DOMA-like ban on "Equal Benefits" for gay partners.

Piece by piece, Obama is setting up legalized gay marriage in America, right here and now. He has abandoned any pretense of supporting biblical Christianity, and has declared war against it.

Christians, if you vote for Obama in 2012, you know what is going to happen to America. It's your call.

You want to discuss principles of interpretation, James, well and good. Let's start with presuppostions, which are foundationally important to how we approach and interpret texts. So you tell us yours and then I'll tell you mine. Please address the following issues:
*Tell us upon what authoritative basis/criteria you decide if something is right or wrong.
*explain to us your idea of justice and where you derive it. And why you derive it from that source?
*explain your concept of truth and your source of truth.
This should be enough for now. And so I eagerly await your reply as do all who are following this silly game of verbal tag. Answering these three questions should bring a sense of gravitas and direction to this discussion.
Oh, and one last thing: please keep your responses short and free of technical jargon - in deference to me as one unschooled in the field of law/debate.

Piece by piece, Obama is setting up legalized gay marriage in America, right here and now. He has abandoned any pretense of supporting biblical Christianity, and has declared war against it.

The President's job, no President's job, is "supporting biblical Christianity". If he tried to do that, he would be violating -- how many times do I have to say this? -- the "establishment" clause of the First Amendment.

Besides, even apart from that, which version of "biblical Christianity" should the President support? Last time I looked, the number of Christian denominations was into 4 digits, and each one has its own version of what "biblical Christianity" is, and each such version is usually inconsistent with all the other versions of "biblical Christianity", often diametrically so.

"...you refused to answer my original question about why you treat the Bible and the Constitution differently..."

But James, you put the Bible off limits.

You specifically stated: "[...] the only relevant document in this entire discussiion is the US Constitution, not the Bible."
I'm honoring your original request.

But you never did say why you won't let us know your foundational beliefs.

What are you trying to hide, James?

Is is b/c your foundational beliefs can be used to refute your legal/moral conclusions? And you can't take the chance of having to defend the indefensible.

When I said the only relevant text was the Bible, I was talking about justifying a given public policy -- in this case, prohibiting gay marriage -- not issues of interpretation. I strongly suspect that you know that, but that for whatever reason, you are being evasive.

In any case, when i suggested that we focus on the issue of interpretation, you agreed. You said you wanted to talk about and to focus on issues of interpretation now -- not issues of interpreting any particular text, just issues of interpretation-as-such, without reference to any particular text.

I'm saying fine, let's do that, and let's start with the interpretation question I have asked you several times now, but that you have not answered.

Since we are just talking about interpretation now -- at least, that is what you yourself said you wanted to focus on -- then all documents, including the Bible, are fair game.

Since (1) I asked my question first, (2) repeated my question several times, but (3) never received an answer from you, I think you should answer my question first. IOW, let's take care of old / oustanding / pending business before moving on to your (quite legitimate) questions.

That seems fair to me.

[Sigh] James, I must say you are a big disappointment to me. You have prodigiously informed us of what you believe but not why. I have asked many times, but you continue to ignore my request. But since you are so interested in principles of interpretation I will tell you, yes, of course, there are differing interpretations of the Bible - but so what. The central foundational principle that traditional/conservative Christians accept is the Bible is God's word inspired by the Holy Spirit. And too, most Christians using classical protestant hermeneutics (the historical grammatical hermeneutic) accepts that there is one correct interpretation for each verse - but there could be different applications. And yes, of course, many come up with differing interpretions using the same principles and the same text. But again, so what? We don't think our interpretations are inspired. But in fact the vast majority of conservative traditional protestants believe very much alike contrary to what you think.

But in reference to the Constitution, I believe you and your ilk in pressing for legalizing gay marriage are trying to bring a perversion within the range of what is considered normal behavior. To borrow Daniel Moynihan's phrase, you are defining deviancy down. Now you and your liberal friends may think homosexual behavior is normal, but traditional Christians don't. And as you know our world view is shaped by the Bible - very similar to the framers of the Constitution. Now not all of them may have been Christians, but all of them were shaped by a Judeo Christian worldview to one degree or another. And that Judeo Christian worldview comes through in the Constitution. And I dare say, not one of them would approve of how you are using the Constitution. In fact they would be appalled.

Now it is your turn.

Thank you, Dan. That deals with 1 of my 2 issues. If you will answer 1 more question for me, I will deal with your (again, quite legitimate) issues.

You believe the Bible is the Divinely inspired Word of God. The US Constitution, OTOH, is a flawed, fallible, human document.

Yet, you seem to have no problem with various reformers, down through the centuries, reinterpreting the Bible over and over again. Your reaction is "There are different interpretations ... So what?"

Yet you do have severe problems with people -- lawyers, judges, courts, even ordinary schmucks like me -- reinterpreting the Constitution.

This seems exactly backwards to me.

So my question to you is simply this: [b]if it is OK to reinterpret the Word of God, why is it not OK to reinterpret the word of man?[/b]

An interesting side-note to this discussion ... anyway, I think it's interesting.

When you cite differing interpretations of the Constitution, my reaction is just like yours when I cite differing interpretations of the Bible: "So what?"

This is but yet another example of the Progressively Agressive Gay Movement.

@James: I'be been trying to post a comment for several days, but it hasn't posted. I will see if this posts.

"You believe the Bible is the divinely inspired word of God."
In the origninal autographs.

"You seem to have no problem with reformers reinterpreting the Bible."

You said that - I didn't.

"You do have a problem with people reinterpreting the Constitution."

Note the differences between "interpret" and "revisionism".

I have no objection to revisiting the Constitution to ensure its correct interpretation and application, just like I have no objection to revisiting a Biblical text to ensure fidelity to the text. That's why conservative scholars use the literary/historical/grammatical principles of Biblical interpretation.

Again, James, the differences in Biblical interpretation among traditional Christians is not nearly as great as you think. You are incredibly biased and are apparently ignorant of church history.

But it is the revisionist nature of your ilk that is distressing to conservative/traditional Christians, especially when you redefine morality and marriage in ways that are foreign to the Christian worldview and then attempt to validate that reinterpretation/revision using the Constitution and forcing not only that interpretation on us but also the consequences as well. By way of analogy, it is similar to Paul's dispute against the antinomians.

With the issue of gay marriage, it is not only your flawed legal reasoning that is disturbing but also your flawed moral reasoning that is repugnant as well.

Actually, James, I thought Divine judgment. :) Amen.

OK, Dan, let's try this again. Maybe my post will stay up this time. Where were we? Oh yes ...

"You seem to have no problem with reformers reinterpreting the Bible."

You said that - I didn't.

Good! Now we're making some progress. You're right: the no-problem-reinterpreting-the-Bible was my incorrect assumption about you. The problem arose because of my hasty and ill-informed assumption about you, and also from your reluctance to answer my original question about reinterpreting the Bible.

Note the differences between "interpret" and "revisionism".

But from the standpoint of constitutional jurisprudence, there is no difference. Remember: the Constitution means what the courts -- in particular, the US Supreme Court -- say it means. There is no other meaning of the Constitution to be discovered beyond its interpretation by the courts, especially the Supreme Court.

You seem to have the idea that, lurking behind all the interpretations of the Constitution in case law, there is some "Ur-interpretation" that is the real and true interpretation, irrespective of what the courts say the Constitution means.

I am saying there is no such "Ur-interpretation". There is no meaning to be sought beyond the Constitution's interpretation by the courts. As evidence, I cite -- this is just one example -- Chief Justice Marshall's statement in the Marbury v. Madison decision of 1803 that "the Constitution means what the Supreme Court says it means". (That's close enough to his exact words that I feel justified in putting it in quotes.) "What the Court says [the Constitution] means" -- nothing more, nothing less.

The point is that when the Supreme Court interprets the Constitution, yes, the Supreme Court is revising the Constitution. However, two points:

(1) given that the meaning of the Constitution is determined -- is defined -- by its interpretation by the courts, especially, the Supreme Court, there is no way to separate "interpretation" from "revision": the 2 are really just different words for the same thing.

(2) it is good that the courts, especially the Supreme Court, revise the Constitution from time to time. Why? Because, to cite just 2 examples, (2a) if the Supreme Court had not revised the Constitution in 1954, we would still be stuck with racially segregated public schools, and (2b) if the Supreme Court had not ruled inter-racial marriage prohibitions unconstitutional in Loving v. Virginia, marriage between races would still be illegal.

So prohibiting the Court from revising the Constitution would mean returning to racial segregation and "anti-miscegenation" laws.

when you redefine morality and marriage in ways that are foreign to the Christian worldview

But again, as I have said repeatedly throughout our exchage of posts, it is not within the government's constitutional authority to inscribe any specific set of religious beliefs -- Christian or non-Christian -- into the civil law. This is not to say that the law has no moral basis, quite the contrary. All systems of laws are predicated on some moral vision or other. But in a constitutional republic, whatever moral principles are encoded into the law have to have a more than exclusively religious justification. There are laws against murder. Murder is morally wrong religiously. But murder is also wrong civilly and secularly because of the obvious damage that would be done to the social and political order if murder were legalized. Ditto theft: non-religious as well as religious justification. Ditto fraud. Etc., etc., etc. In order for moral principles to be justifiably written in to the law, those moral principles must have a non-religious justification. Otherwise, writing them into the law constitutes a violation of the "establishment" clause of the First Amendment.

There are no such non-religious justifications with homosexuality and homosexual behavior. There is no objective, empirically verifiable social pathology associated with homosexual behavior. (Homosexually transmitted AIDS? Heterosexual sex also transmits AIDS. Shall we therefore prohibit hetero- as well as homosexual activity?) Therefore, irrespective of one's religiously derived beliefs about the morality of homosexual activity, there is no constitutional justification to prohibit it, or to deny constitutional rights to gay people.

You are free, religious organizations are free, to adopt whatever attitude you feel is appropriate toward homosexuality, as a matter of religious and theological conviction. The "free exercise" clause of the First Amendment gives you an inalienable right to do just that.

But by the same token, in the absence of countervailing data about social pathologies, neither is there any constitutional justification to criminalize homosexuality or to deny gay / lesbian people constitutional rights.

My "moral reasoning" may be "flawed". But that is irrelevant. "Moral reasoning" is irrelevant, constitutionally. What matters vis a vis gay marriage -- all that matters -- is constitutional reasoning.

Dan ... Sorry -- the HTML tags for bold and for italics got lost somewhere. I put them in the original text of the post, but they did not appear when the post was published.

A clarification ... When I say that moral reasoning is irrelevant, I mean only moral reasoning that is based purely and exclusively on one's religious and theological convictions, with no correlative justification in social and political considerations.

For example, one can reason morally that murder is wrong, and one can write prohibitions against murder into the law. But that is because law is, for obvious reasons, damaging to a society. IOW, religious / theological reasons are not enough.

If you want to write moral principle X into the law, and if you only base this desire on religious / theological convictions, that is not sufficient justification.

It is that type of purely theological / religious moral reasoning that is irrelevant.

Please review our guidelines at http://www.christianitytoday.org/help/permissionsandprivacy/termsofuse.html
and refrain from utilizing the thread as a basis for personal conversation. The purpose of comments is to direct the comments to the article content, not to debate and control the thread.

"You seem to have no problem with reformers reinterpreting the Bible."
Note: Bad analogy! the reformers differed very little in their interpretation of the Bible. Not only that the major reformers all stayed within the boundaries of what is considered orthodox belief. Using them as an analogy fails.

"There is no other meaning of the Constitution to be discovered beyond its interpretation by the courts, especially the Supreme Court."

Except a re-interpretation by a more contemporary SC.

"...if the Supreme Court had not revised the Constitution in 1954, we would still be stuck with racially segregated public schools, and (2b) if the Supreme Court had not ruled inter-racial marriage prohibitions unconstitutional in Loving v. Virginia, marriage between races would still be illegal."

This is speculation on your part - not fact.

"...the real and true interpretation, irrespective of what the courts say the Constitution means."
I think there was broad concensus at the time of the adoption of the Constitution. They knew what they meant.
"This is not to say that the law has no moral basis, quite the contrary. All systems of laws are predicated on some moral vision or other."

True...and the moral vision of the framers of the Constitution was mediated through what worldview - evolutionary/materialistic/relativistic naturalism? Don't think so.

And the moral vision of the progressive liberal is...? (Now would be a good time for you to let us in on your moral presuppositions. You said you would let us all know.)

"All systems of laws are predicated on some moral vision or other. But in a constitutional republic, whatever moral principles are encoded into the law have to have a more than exclusively religious justification."

And the moral vision of the progressive liberal in contrast to the traditional conservative Christian is...?

"...the differences between "interpret" and "revisionism"...from the standpoint of constitutional jurisprudence, there is no difference."
But in the forming of a moral vision there certainly is a difference. And it is that moral vision that provides a basis for not only the kind of laws enacted but also the interpretation of existing laws/the Constitution.

"There are no such non-religious justifications with homosexuality and homosexual behavior. There is no objective, empirically verifiable social pathology associated with homosexual behavior. "

That's your opinion.

Therefore, irrespective of one's religiously derived beliefs about the morality of homosexual activity, there is no constitutional justification to prohibit it, or to deny constitutional rights to gay people.

What Constitutional rights are gays being denied?

'"Moral reasoning" is irrelevant, constitutionally."

Tell that to African-Americans.

"What matters vis a vis gay marriage -- all that matters -- is constitutional reasoning."

Which is formed/heavily influenced by a moral vision which is formed by/influenced by....certain presuppositions. By the way, care to inform us of your presuppositions?

"The Secular Case Against Gay Marriage"
http://tech.mit.edu/V124/N5/kolasinski.5c.html

@CT Moderator: The purpose of comments is to direct the comments to the article content, not to debate and control the thread.

A couple of points:

(1) Dan and I are directing our "comments to the article content", namely the issue of the constitutionality of gay marriage. Yes, this dialogue is in the nature of a conversation between me and Dan. Previously I was in dialogue with other participants in the thread.

(2) I grant you that Dan and I are jointly "control[ling] the thread". But that is because no one else has chosen to join in. That is a decision neither Dan nor I control. Frankly, given the importance of the issue, I would welcome broader participation. I think it is safe to assume Dan would, as well. In saying that we "control the thread", you are giving both Dan and me credit for 'way too much influence. We really don't have that much power, individually or jointly.

It is unfair to ascribe others' not participating as some attempt by Dan and me to control the conversation.

Bad analogy! the reformers differed very little in their interpretation of the Bible.

Well, they differed enough that, by the time of the 20th century, there were ... I forget the exact number ... but somewhere in the high-triple or low-4-digits of distinct Christian denominations, each with its own denominationally distinct interpretation of the Bible, theology, etc. Of course, I guess it all depends on how you define "very little".

Except a re-interpretation by a more contemporary SC.

Yes, but all you are saying is that the meaning of the Constitution evolves / changes through time. I don't see the problem with that. As David Strauss notes in his book The Living Constitution, the meaning of the Constitution has to be arrived at by considering the text of the Constitution "proper" within the context of the multitudes of case-law decisions made by various appellate courts (not just SCOTUS) since the late 1780s. As new decisions are made, that inventory of case law expands -- and the meaning of the Constitution changes.

The phrase "meaning of the Constitution" denotes that whole complex of jurisprudence: the text of the Constitution together with the various case-law interpretations that have been written down through the centuries.

So, e.g., if you want to know what the First Amendment "means", you have to, yes, read the text of the First Amendment. But you also have to read decisions like Schenk v. United States, Debs v. United States, Whitney v. California, Brandenburg v. Ohio, NY Times v. Sullivan, NY Times v. Nixon, etc., etc., etc. Why? Because the "meaning" of the First Amendment is not just the First Amendment itself, but the "vector sum" of all case law relevant thereto.

Also, you gravely underestimate the difficulty of arriving at the "original intent". In many cases, the "original intent" is simply not accessible to us. (Example: the 10th Amendment.) In many other cases, in order to even form an educated guess as to "original intent", you have to go into the historical record. That means reading the correspondence of the Framers, the minutes of various state constitutional conventions (where those exist), the writings of people who were not directly involved but who knew the principals and can at least give hearsay as to the principals' opinions (e.g., friends of James Madison, etc.), etc., etc., etc. That adds up to reading literally thousands of documents to find out what the "original intent" of the Framers was. Is that possible? In principle, sure that's possible. However, please note that the process of examining the historical record will always involve you in the process of interpreting documents. Now you will have to determine the "original intent" of those secondary documents. (E.g., what did Thomas Jefferson really mean by the "wall of separation between Church and State"? How did he envision the form that wall would take? Who would determine what was on which side of that wall? Again, these are questions of interpretation.) So you have to repeat the above process all over again.

This is not to suggest that "original intent" is always and in all contexts a "bad" way to interpret the Constitution. But if you attempt to use "original intent" as a "blanket" interpretive methodology, you will very quickly get caught up in an infinite regress of interpretations, first the interpretation of "secondary" documents (ancillary writints of the Framers), then the interpretation of the "tertiary" documents (e.g., writings of people who knew the Framers), etc., etc., etc.

True...and the moral vision of the framers of the Constitution was mediated through what worldview - evolutionary/materialistic/relativistic naturalism?

The "moral vision" of the Framers was a mixed bag, much more so than you give it credit for being. The Framers were not all conventional, orthodox Protestant Christians who sat upright in pews in the churches they attended every Sunday. Some fit that description. By no means all. Some, in fact, come very close to being what you might call "secular humanists", e.g., Tom Paine, Thomas Jefferson (who had some very unorthodox and contemporarily scandalous ideas about Jesus), etc., etc., etc.

What they all were were men of the European Enlightenment, and for that reason they all had a very healthy and robust distaste for any form of religious coercion backed up by government power, and who were, accordingly, extremely skeptical of any attempt to encode into the civil law any denominationally specific set of moral and religious doctrines.

And the moral vision of the progressive liberal in contrast to the traditional conservative Christian is...?

I don't see why this is at all relevant to whether someone's interpretation of the Constitution is relevant or not. The Constitution is not a religious or theological document. But I answer your question below, in partial keeping of my earlier promise.

What Constitutional rights are gays being denied?

The right to marry someone of their own sexual orientation, a right taken for granted by heterosexuals.

"There are no such non-religious justifications with homosexuality and homosexual behavior. There is no objective, empirically verifiable social pathology associated with homosexual behavior. "

That's your opinion.

Can you cite anything from the literature that details objective, empirically observable, actual harm done to society by gayness as such, or by the cohabitation of homosexuals?

Please understand: I'm not asking you to reprise your religious and moral objections, or the religious and moral objections of your Christian denomination. I'm asking for journal articles, psycho-social historical studies ... IOW, data, not beliefs ... to substantiate the argument that homosexuality and homosexual behavior and homosexual cohabitation do actual, observable harm to society.

"Moral reasoning" is irrelevant, constitutionally."

Tell that to African-Americans.

Thank you for citing yet another instance to substantiate my point about needing objective information about harm in order to justify writing moral precepts into law. The civil rights movement and civil rights legislation are sterling examples.

Racial prejudice and bigotry, and the associated patterns of discrimination, are all immoral. I think we can agree on that. But in addition to violating the tenets of any decent morality, racial bigotry and the acts motivated thereby cause actual, objective, empirically verifiable harm to society. Unemployment, violence (e.g., race riots), the breakdown of the rule of law (e.g., racially motivated lynchings), a whole multitude of social pathologies (e.g., out-of-wedlock births, elevated crime rates, health problems that fall disproportionately on African-Americans, etc., etc., etc.) The civil rights movement and civil rights legislation was not only for the sake of African-Americans. The movement and the legislation was ultimately for the broader and more inclusive health of American society generally, without regard to race or ethnicity.

That's what I mean when I say that, in addition to morality, it must be possible to cite instances of objective, empirically observable harm before one is justified in writing morality into civil law.

Look at it another way: even an atheist or a strict moral relativist would be in favor of civil rights and pertinent legislation.

***

Now, as to my moral principles and presuppositions.

I start from the premise that human beings are more important than God. I no longer believe in God. Nor do I disbelieve. I think it's an open question. But even back when I did believe in God, I still believed people are more important than God. I figure God is a grown Deity -- omnipotent, omnipresent, omniscient, and all that -- and so can take care of Himself. I cannot say the same for human beings.

So, at the end of the day and skipping over the details for lack of time, my overriding moral question -- the only question that counts, in the final analysis -- is "What is good for human beings?"

For starters, I think it is good to show compassion for others. I also think it is good to try to understand why they are as they are, even -- or maybe especially -- when their behavior is repugnant. E.g., I think it is important to understand why a man beats his wife ... once she is removed from the home and from danger of immediate harm, of course. People so the things they do for a reason, and it is always -- always -- important to understand what those reasons are, even if we don't agree with the reasons and even if we consider the actions that flow from those reasons revolting. I'm also big on justice ... again, not because God commands it, but because it is good for people. Justice may be defined generally and colloquially as inheriting the consequences of the actions we perform, good or bad, i.e., getting what you deserve. (Again, I'm skipping over details for lack of space.) Liberty is also good for people, defined as the capacity to implement one's free choices, provided that doing so does not infringe on others' rights to do the same, without interference from secular or religious authority. Equality before the law is also important as a moral principle, simply because we are all mortal human beings, and whatever advantages we enjoy are advantages we were not literally born with or ordained to have by God, Chance, or the Tooth Fairy. Each person is a moral center capable of choice and equally deserving of liberty as I defined it above.

I also believe that political and economic -- and religious / theological -- systems ought to be designed so as to serve people, not the other way around. When political and economic and religious / theological systems cease using people, and begin to use people instead, those systems forfeit all claim on our loyalty and allegiance. Corollary: when God -- any God -- ceases to conduce to hunan well-being, individually and socially, that God deserves to be consigned to the ash heap of history -- as all gods historically have been at some point. Analogous remarks hold for the political and economic orders.

There's lots more to the story, obviously, but that'll do for now.

Thank you for posting your presuppositions. They are typical of secular humanists. "[...]my overriding moral question -- the only question that counts, in the final analysis -- is "What is good for human beings?"

Typical of agnosticism: man makes himself in God's image.

But really, a better question at the end of the day is "What does GOD say is good for human beings." Leviticus 18:22 You shall not lie with a male as one lies with a female; it is an abomination.

Typical of agnosticism: man makes himself in God's image.

I take it you have given up on the constitutional side of the argument.

I would only say: (1) I have no interest in being made into God's image or making anyone else into such, (2) human beings in every age have made God in their image, (3) your quote from Leviticus obviously begs the question, since I do not accept the premise that God exists (outside the human psyche) and has authority over human beings.

"...your quote from Leviticus obviously begs the question, since I do not accept the premise that God exists..."

Actually, I did not beg the question as I was not asking you accept the premise that God exists - I was merely elucidating my presupposition.

And your presuppositions (tho I do disagree with you on many of them) do lead you consistently to your conclusions especially as to how you interpret the Constitution regarding the right to same sex marriage. I really think any and all of the framers (including John Marshall) would heartily disagree with your legal reasoning as it results from your moral vision (but this is not just you specifically but for all of your ilk.)

And I have not given up on the Constitutional side of the argument - that has yet to be decided by SCOTUS, correct? Should they decide opposite to your understanding, will you give up your side of the Constitutional argument?

However, as SCOTUS has decided about 9th CCA - and I will take their word for it - their legal reasoning is flawed much of the time. So I will apply that conclusion to your legal reasoning here. As a non-lawyer I obviously do not have the legal background (especially in the art of obfuscation) to debate this issue as rigorously as you. (I knew that from the start as did you.) But that doesn't really matter. I know your presuppositions (a kind of philosophical naturalism, I would say)and those tell me everything I need to know about where you go wrong. The framers of the US Constitution were not burdened with that frame of mind as they were writing from a Christian worldview.

I did not intend to debate the irrationalism of your moral presuppositions - I just wanted to be clear about them. I am now. But I must say I do find it remarkable you phrased your core beliefs as if they were moral absolutes even though you have no other standard by which to base that - except yourself.

But if it is a secular case against gay marriage that you want, see here: "The Secular Case Against Gay Marriage" http://tech.mit.edu/V124/N5/kolasinski.5c.html

Now I must say you are the first prog lib posting here who has been this articulate - I do appreciate that. And I have saved your arguments and will read them as representative of the pro lib position.

I really think any and all of the framers (including John Marshall) would heartily disagree with your legal reasoning.

Yes, I quite agree. They would no doubt have also disagreed with the "legal reasoning" that leads me to believe that women should  be able to vote and that African-Americans should have full civil rights. Thomas Jefferson counseled Americans to not be constrained by what he called "the dead hand of the past". Mr. Jefferson also favored (1) a full-up revolution every 20 years or so. (The 20-year interval is his number, and may be hyperbole on his part.) He also favored convening a Constitutional Convention every few years -- I think he suggested every 3 years -- to update / revise the Constitution. My ideas are downright stodgy and plodding, compared to Mr. Jefferson. 

In any case, and with all due respect, I think you need to adopt a more critical attitude toward what appears to be your "older-therefore-more-right" interpretive paradigm. In another letter to one of his colleagues, Mr. Jefferson opined that people living in times more distant from the Revolution and the Framing would be wiser than the Founding generation in matters constitutional, because people of that distant future era would have had much more experience in running the country. Though he never said so explicitly that I am aware of, Mr. Jefferson's writings lead me to strongly suspect that he saw the country as growing in intelligence and wisdom much as a healthily developing child does. 

Should they decide opposite to your understanding, will you give up your side of the Constitutional argument?

You have asked me this before, and I'm curious as to why you keep repeating the question. In any case, I will give you the same answer I gave you before:  yes, I would accept SCOTUS's ruling. I would disagree. But I would acquiesce. This has happened many times about past decisions. In recent times, I have disagreed with SCOTUS about the Federal Election Commission case involving corporate campaign contributions, and also about the 2nd Amendment decision. Less recently, I think the Court got it wrong in Schenk v. United States and in Debs v. United States, 2 landmark "abridgement" clause decisions. 

But American law has a remarkable ability to -- eventually and over time -- "heal" and correct itself, e.g., going from Dred Scott and Plessy to Brown v. Board of Education. So even if SCOTUS reversed Perry, the historical record strongly suggests we would ultimately get it right. As Dr. King said "The arm of the moral universe is long -- but it bends toward Justice". 

You may very well be right about what SCOTUS will decide when it hears arguments about Perry v. Brown. At this point we don't know. If it does overturn Perry, we will be in for some very interesting times the first time the Court is called upon to consider gay marriage in the context of full faith and credit, and whether or not states may assert a public policy exception thereto. 

As a non-lawyer I obviously do not have the legal background (especially in the art of obfuscation) to debate this issue as rigorously as you.

I'm not a lawyer. I'm just a self-taught Constitution wonk. For a while after retiring, I did consider going back to school and getting a law degree. I even went so far as to take the LSAT. I got a very high score, but the bottom line was that a 4-year law degree would cost $30,000, and that's probably an optimistic number. 

Besides, I had no interest in becoming a practicing attorney. I wanted to be a scholar of the Constitution, specializing in the history of the First Amendment and First Amendment case law, especially "abridgement" clause jurisprudence. 

My concern with interpretation is a consequence of getting a PhD in English lit, with a specialization in interpretation theory, specifically the philosophical foundations of deconstruction. 

The framers of the US Constitution were not burdened with that frame of mind as they were writing from a Christian worldview.

Well, that's what conservative Christians keep alleging, and citing well-documented and universally acknowledged
historical evidence to the contrary seems to never make a dent. It's as if they have their minds made up to see the Founders and Framers as conservative evangelical Protestants, and are impervious to being confused by the facts. 

E.g., it does no good to cite Messrs. Jefferson, Franklin, and Paine as English deists. (As he notes in "Common Sense" -- a book I heartily recommend! -- Mr. Paine was perennially subject to accusations of outright atheism.) John Adams was a pretty orthodox Christian, and Mr. Washington, while an observant high-church Episcopalian, was extremely reticent about his personal faith, and would have considered all displays of Santorum-eaque spiritual exhibitionism as vulgar and ungentlemanly, at best. 

What can be said of the Founders universally is that they were all men of the European Enlightenment. As such, they held in contempt and considered downright dangerous all displays of immoderate and undisciplined passion -- including immoderate and undisciplined religious passion. Even the most religiously orthodox among them -- John Adams, for instance -- believed in the sovereignty of reason to govern ideological zeal, even -- perhaps especially -- religious zeal. Would that current political dialogue were similarly moderated!

I do find it remarkable you phrased your core beliefs as if they were moral absolutes

This mystifies me. You asked my position on gay marriage and related issues, and that is what I gave you. Yes, I argued forcefully in favor of my opinions. If I could not have argued in favor of my opinions, they would not have been my opinions. Infallibility and absolutism, on morals and everything else, I leave to those who have been vouchsafed a privileged relationship to God. Or think they have been. 

To Steve - the problem with your argument is this - human reason is corrupted by sin! And therefore cannot be trusted!

Presumably your reason has also and likewise been corrupted, too. So we shouldn't trust your reasoning in your argument.