I fail to see why gay rights activists don't see the obvious flaw in their strategy of making this a 14th Amendment issue as opposed to an Establishment clause issue - the problem that religious conservatives have with gay marriage (at least the honest ones speaking in good faith) is that it, in theory,
forces churches to perform marriages that violate the precepts of their religion, because someone thought it'd be an awesome idea to make make the religious ceremony and the secular contract
the same fucking thing.
So to boil it down:
You have
Church authorities performing
State functions.
Thus, by simply decreeing that gays can get married, you violate the 1st Amendment.
By denying this to gays, you violate the 14th Amendment.
So what is the only reasonable solution? Separate the civil contract from the religious ceremony, remove from the religious authority the State power to legally recognize marriages, so we can stop fucking talking about it already. It's such a simple fucking solution, but apparently, neither the Left nor the Right want to actually try it.
Also, I briefly skimmed Deck's argument, the crux of which is:
The other camp believes that marriage is a societal institution established to encourage the ideal unit for raising children and continuing a functioning society.
, but I *think* what it boils down to is not so much religious prejudice, but another view which *I* find morally repellent, which is the concept of
the State as defender of social order, which is not only deeply un-American (seeing that America is ideologically founded on Enlightenment Classical Liberalism despite its deeply Christian social roots, and the concept noted above is pretty much the
antithesisof Enlightenment Classical Liberalism) but repugnant to my anti-statist sensibilities. There is a reason the Founders refused to establish a national church like the English (despite the English also being a Liberal Enlightenment culture), there is a reason why they limited the power of the State to the unprecedented extent that they did (and keep in mind that the Constitution was a huge step forward in state power compared to the Articles) - there is a reason why the First Amendment was...first (there is a reason why the original text of the Amendment did not place any limits on speech, including speech that might undermine the traditional order - they did not intend any). The original intent of American republicanism is utterly inconsistent with the concept of government defending *any* traditional order, including that of marriage.
Of course, the idea that the majority gets to decides
universal rights, or even the rights under the Constitution, is something that is opposed by both Liberalism
and Conservatism; the idea of absolute majority rule is more appropriate to Marxism and Fascism. Again, we look to the founders and notice that not only did they create an "upper house" that originally wasn't even electable by the people, they created a supreme court, also unelectable by the people, AND holding office for life, to interpret the law. Again, the original intent of the Founding was utterly opposed to total majority rule - why else did they put so many roadblocks to it?
Keep in mind majorities were against integration (though I oppose on principle the forced integration of private institutions, though that's a matter for another thread), and integration was essentially enshrined by "judicial activism" (never mind that both sides tend to protest only the judicial activism they dislike - I could point out a whole bevy of Supreme Court opinions that could only be considered judicial activism that conservatives applauded; the refusal to extend 1st Amendment protections to obscene or seditious speech cannot be considered "original intent" in any way, shape or form).
In short, the defenders of traditional marriage will do far more service for their cause by focusing their efforts to strengthen heterosexual love and heterosexual marriage (which is in dire straits at this point in time - culturally it is under assault from all quarters, while the economic incentives for marriage have been undermined for close to half a century, starting with the woefully misnamed "Great Society") than to waste their efforts acting as a vehicle for anti-gay prejudices.
