"Gender no longer…essential (to) marriage"

In an utterly unsurprising ruling, and one that is inarguable if one is peering through the narrowed prism of stringently secular law, and reducing marriage to a sort of contractual partnering, Judge Vaughn Walker has ruled restrictions against same-sex marriage to be unconstitutional.

You can read the whole Prop 8 decision here.

I was intrigued with this part:

Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

As I say, an expected ruling, given the narrowing of perspective. It is counter-intuitive to 5,000 years of human cultural understanding, but we’ve seen a lot of that, these past 40-or-so years.

My first thought: the churches–any of them who wish to remain able to practice their faith in relative freedom–will have to seriously consider getting out of the business of acting as “duly recognized” agents of the state in legalizing marriages. The alternative will be inevitable lawsuits charging “discrimination” for disallowing church weddings, a diminution of our constitutional right to free worship, and a further emptying of church coffers as settlements and fines are levied.

As I’ve written previously:

” . . . the churches should reconsider their roles in authenticating marriage. Governments issue birth certificates; churches issue baptismal certificates. Governments issue death certificates; churches pray the funerals. Governments issue divorces; Churches annul. Both work within their separate and necessary spheres, serving the corporeal and the spiritual. It is only in the issue of marriage that church and state have commingled authority. That should perhaps change, and soon. Let the government certify and the churches sanctify according to their rites and sacraments.”

Meanwhile, lots of glad or angry or funny remarks on twitter. My favorite so far is from Jim Geraghty who tweets:

These appeals are going to take forever. Can’t we just ask Anthony Kennedy what he thinks about gay marriage now?


Some are wondering where democracy is
, when “the will of the people” can be overridden by judges. Well, it’s not like that’s something new. People are writing to me that “marriage is under attack.” I disagree. Marriage will go on. What is under attack is federalism.

Here is how states break down on the issue, via Melissa Clouthier.

Andrew Malcolm has an early roundup of reax.

Cardinal Francis George: Not Happy. Not surprised, either.

Hey, Christians live in exile, and we’re in for a long one. It’s part of the gig we signed on for.

UPDATE:
Walker has issued a stay in his order.

Meanwhile, the Episcopal Church is preparing:

Armed with a new $400,000 grant and the support of the Episcopal Church, a Berkeley seminary is convening priests from across the country to craft the liturgical rite for same-sex couples to receive religious blessings.

The new rite, which will take years to complete, will most likely consist of a series of original prayers, Bible readings and two essays: one on the theological meaning of same-sex blessings, and one advising priests who administer the new rite.

More first reactions: Check back as I’ll be linking to them as I find them!
Gay Patriot
Hot Air
Chris is Right
BlogHer: Reaction Roundup
Kathryn Jean Lopez: “Recreating fundamental institutions. She has more here
Instapundit: Beginnings of a roundup.
Allahpundit
Michelle Malkin
Ace and Gabriel
Joe Carter: Disappointed, not surprised
Reason
Politico Arena
Sister Toldjah

About Elizabeth Scalia
  • F

    Hi from CA, ground zero for the fight to preserve and protect natural marriage. We’re getting used to bad rulings here & having our vote negated by activist judges: judicial tyranny.

    The homosexual lobby has been training up their “youth” and have infiltrated the school systems, etc. and have gained the upper hand. It will be a long time before we can turn that around….

    unless…

    we actually heed Our Lady of America, an approved apparition, and give her the honor and veneration she requested in 1956, and place her in the Basilica of the Immaculate Conception. I’ll bet we’d get a lot of the cultural ground back with the mass conversions she promised.

    And now a nitpicky sidebar.

    About ‘freedom to worship’:

    I read that we should not call it the right to worship, that that is the “new speak” the commies used to use to re-work things and diminish basic human rights. I read and also heard various Catholic speakers and legal scholars say, Hilary Clinton recently called it the freedom to worship, but that it is the freedom of religion. In other words, they can say to us, feel free to go worship as you wish, but do not try and influence society as your religion demands or suggests. In this way, the speakers/writers were saying, we’d be edged out of the political arena. I may not have explained this well and apologize in advance. Its not my professional area of expertise, but, did want to get the point across as its going to be so key for us not to get hoodwinked with new speak.

    Lord have mercy on U.S.!

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  • http://www.opinionatedcatholic.blogspot.com J Hood

    If I may let me be in slight disagreement.

    In all reality the Church is not that deep in the Marriage business besides having the Priest Licensed to to perform the marriage. In many States besides the license there must be a Ceremony and that requirement can be done by a Priest, pastor, Judge or Justice of the Peace.

    The reason I nbring this up is when this issue comes up people jump to the GOVT will make us marry X. Well I am not worried about that. In fact I think it is a dangerous red herring to get our eyes off the ball

    If the Churc h last year got out of the legal side of the marriage business that would have done nothing to prevent what happened to D.C Catholic Charities

    It would have done nothing to prevent that firing of the Professor in Illinois

    We could go on and on.

    Living the Catholic Fatih in relative freedom means a lot more than what we are allowed to do within the four walls of a Church. It includes society and the workplace.

    I think when we focus so much ion the issue of If the Church will have to Marry X in the future we are missing the Forest for the Trees.

    What makes this Opinion so scary is basically it makes Same Sex “sexual ” conduct a Fundamental right. that opens up the Pandora’s box on all sorts of issue from Hostile Workplace Environement Claims, to what is taught in the public schools, to hiring , etc etc.

    In other words, we that think there is something morally wrong with same sex sexual actions are now being placed into the same position as the RACISTs that were against inter racial marriage and wanted segreagation.

    Now the Loving Case was decades ago. To this day Racist Ministers are free to choose who and not who to marry. The Govt is not forcing them to do otherwise.

    But these people that attend these Churches are not exactly getting the best jobs, they will be not be hired at Universities , I doubt they are hired as Coaches and Teachers, and needless to say employers wanting to bypass future Discrimination claims are not going to hire them.

    So in effect where we are going is if I in the public place for instance I proclaim the Church teaching on Sex I am now akin to a racist person that is quite open at work among black employess of how inferior they are.

    Needless to say the Chilling effect will be quite huge on our faith.

  • http://www.bluecollarphilosophy.com/ Blue Collar Todd

    Being a committed Christian here in Liberal California I know things are going to get interesting. The gay rights agenda is an activist one and one that cannot tolerate anyone who opposing it. They will come after churches for sure. In light of the Christian student who must be re-educated to accept homosexuality, I guess we all need to go to camp as well. See you there.

    link.

  • http://www.lightondarkwater.com Maclin Horton

    ‘People are writing to me that “marriage is under attack.” I disagree. Marriage will go on. What is under attack is federalism.”‘

    I think both of those are under attack, but even more fundamentally, that reality is under attack: the reality of sexuality. I liken this to an attempt to decree that there is no difference between a square and a circle. In the long run it won’t work out too well, but in the short run those who insist that there is a difference may run into difficulties.

  • DWiss

    Seems to me, and I may be the only one who holds this opinion, that a never-discussed consequence of legalizing same sex marriage is that once you have done that, then any other form of marriage must be allowed as well. Polygamy, communal marriages, marriages between or among adult, consenting siblings or parent/offspring marriages all must be allowed. Marriage can be anything anyone wants it to me. It’s only social taboos that have limited marriage to one man/one woman, which is the same thing that has prevented all those other forms og marriage as well. A slippery slope indeed.

  • newguy40

    I am in CA too. Monterey Dicocese.

    I wonder if Bishop Garia will speak out. Probably not as this does not directly impact illegal immigrants errr… undocumented fellow Catholics…

  • Valaki

    ‘Some are wondering where democracy is, when “the will of the people” can be overridden by judges. Well, it’s not like that’s something new. People are writing to me that “marriage is under attack.” I disagree. Marriage will go on. What is under attack is federalism.’

    The will of the people is one thing. The Natural Law is another.

    Didn’t Supreme Court once rule what the definition of ‘life’ is?

    We are in the world but not of the world indeed.

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  • BB.

    I have had it with these Federal judges overriding the will of the people! DWiss is right. It’s only a matter of time before it becomes legal for me to marry my grandmother.

  • Guido

    I can’t think of the gay movement’s motivation to campaign for being allowed to marry; other that they have this desperate need for approval from society.

    After they get the license to marry and they see that their need for approval is still there, what will they do?

  • http://www.missdynamite.com Sirkowski

    Can’t you gentiles get your own god? YHWH has made quite clear he doesn’t appreciate your politics with this ruling. Why do you think us liberal Jews are winning every time?

  • Deacon David

    The will to power is exceeded only by the will to ignorance.

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  • jpe

    The alternative will be inevitable lawsuits charging “discrimination” for disallowing church weddings, a diminution of our constitutional right to free worship, and a further emptying of church coffers as settlements and fines are levied.

    The first amendment will enable you to be as homophobic as you want. The doomsday scenario is pure fiction.

    [This is not about homophobia. I neither fear nor hate gays. This is about constitutional insecurity. It is not "pure fiction" that the churches will not be protected. Watch. -admin]

  • jpe

    I can’t think of the gay movement’s motivation to campaign for being allowed to marry; other that they have this desperate need for approval from society.

    If you got married because you wanted approval from society, I feel bad for your spouse.

  • Rhinestone Suderman

    Guido, I suspect their next move will be try and force those churches, that don’t perform same-sex weddings, to either give in, or be shut down.

    After that—I don’t know. Their craving for approval appears to be insatiable.

  • DWiss

    jpe (#15):

    A phobia is an irrational fear of something. No one who has posted here has mentioned an irrational fear of homosexuals or homosexuality. Most of us agree with the Catholic church teaching that engaging in homosexual acts is a sin, and that allowing same sex marriage is condoning a sinful lifestyle. So, we object.

    Don’t interject general accusations of irrationality into this conversation. It makes you seem ignorant of the terms you are using, and way too eager to prevent anyone from thinking too hard about the topic.

  • shirley elizabeth

    “We, the First Presidency and the Council of the Twelve Apostles of The Church of Jesus Christ of Latter-day Saints, solemnly proclaim that marriage between a man and a woman is ordained of God and that the family is central to the Creator’s plan for the eternal destiny of His children.

    “All human beings—male and female—are created in the image of God. … Gender is an essential characteristic of individual premortal, mortal, and eternal identity and purpose.

    “The first commandment that God gave to Adam and Eve pertained to their potential for parenthood as husband and wife. We declare that God’s commandment for His children to multiply and replenish the earth remains in force. We further declare that God has commanded that the sacred powers of procreation are to be employed only between man and woman, lawfully wedded as husband and wife.

    “The family is ordained of God. Marriage between man and woman is essential to His eternal plan. Children are entitled to birth within the bonds of matrimony, and to be reared by a father and a mother who honor marital vows with complete fidelity. Happiness in family life is most likely to be achieved when founded upon the teachings of the Lord Jesus Christ. Successful marriages and families are established and maintained on principles of faith, prayer, repentance, forgiveness, respect, love, compassion, work, and wholesome recreational activities…

    “We warn that individuals who violate covenants of chastity, who abuse spouse or offspring, or who fail to fulfill family responsibilities will one day stand accountable before God. Further, we warn that the disintegration of the family will bring upon individuals, communities, and nations the calamities foretold by ancient and modern prophets.

    “We call upon responsible citizens and officers of government everywhere to promote those measures designed to maintain and strengthen the family as the fundamental unit of society.”

    That’s the view of my church (as stated), which is also my view, and I am sure also the view shared by many faithful believers.

  • charles

    Sorry, but the idea of separating “secular” from “religious” marriages is nonsensical. Marriage is a PUBLIC institution.

    When Mr. & Mr. Smith or Mrs. and Mrs. Jones enroll a child in a Catholic school ….

    Need I go on?

  • Bender

    Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law.

    There is one thing that same-sex couples cannot do, and that is be an opposite-sex couple, which is an implicit sine-qua-non of marriage, so, no, they are NOT situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage.

    It really is appalling what passes for “law” these days.

  • http://www.opinionatedcatholic.blogspot.com jh

    “If you got married because you wanted approval from society, I feel bad for your spouse.”

    JPE I agree with you that Churches will not be forced t marry gay people. That is a red herring. However there is a difference of Freedom of Worship and Freedom of Religion. Freedom of Religion might be more impacted by this than Freedom of Religion

    However the fact is the gay movements push for gay marriage is very linked to society approval to the sexual conduct at hand. I don’t think that is a secret. Heck the Judge in his Opinion practically comes out and says it.

    Gay Marriage Advocates very much understand the logic of Law and Morals much like Lincoln did. They understand the moral anchor this gives as to the underlying sexual conduct and it approval by society.

    Lets be honest about that

  • Brad

    Judge is openly, though discreetly, gay.

  • jpe

    A phobia is an irrational fear of something

    I believe linguistics call this “semantic decomposition,” and it leads to the sort of bad definition you provide. Homophobia isn’t a fear, but a dislike or hatred.

    [It is also, like "racist" and "sexist" a word that is easily thrown around when some want to portray others as simply malevolent haters, instead of people with actual arguments and viewpoints worth debating. It is a word used to make people shut up. Ultimately, it says much more about the person flinging it, than the ones he/she attempts to tar -admin]

  • Valaki

    jpe (#24):

    But disapproval of someone’s behavior or views is neither hatred nor dislike. It’s called disagreement.

  • http://www.opinionatedcatholic.blogspot.com jh

    “I believe linguistics call this “semantic decomposition,” and it leads to the sort of bad definition you provide. Homophobia isn’t a fear, but a dislike or hatred.”

    JPE

    At times Like this I think the planet has Amnesia. 30 to 40 years ago Gays Activists were very much against the concept of gay marriage. I mean Vocal against it. “Don’t put us in a hetro sexual box” they said

    To his credit I suppose Andrew Sullivan that fought the crusade against that in the gay community and took arrows deserves his victory today on many fronts as to this particular battle.

    However since gay groups have changed their mind we are now haters? In fact now we learn it is a fundamental right almost. What a change.

    In the real world most people that oppose same sex relations do not dislike or hate gays. They interact everyday and in fact have common friendships

  • Feeney

    Astounding! Thousands of years of human history tossed out the window because a handful of elite assholes decide that two men or two women can get married.

  • F

    There have already been lawsuits against churches, businesses and independent contractors that have refused to “marry” a same sex couple, or to provide ceremony-related services to them in Canada, Brazil and other places (which for some reason, I cannot at present recall). The lawsuits are real. They have also been prepared in advance of the ruling and we’ll probably start seeing them like a rash soon. People have done prison time for standing up for Truth, been penalized in the 6 figures, lost businesses, etc. And that is not hate?

    Growing up in very homosexual CA, I always heard my homosexual colleagues, classmates, coworkers etc. say they never wanted to be “married”. Thanks JH for stating same. I actually appreciated Elton John being intellectually honest about this as well.

    I do not hate homosexuals. In fact, I love them. But I do not want their misguided agenda forced down my throat. And it is an agenda. For decades they have worked, planned, and spent millions to achieve the societal destruction we’ve seen today. Even the new term “gay” instead of the honest term homosexual is evidence of this.

    Well. I’ll continue to love them but, I’m praying for our nation so in need of God’s mercy.

    “For the sake of His sorrowful passion, have mercy on us and on the whole world.” Because, we’re going to need it.

  • Bill Sr.

    Words and Language make the difference.

    Gender no longer forms an essential part of marriage; marriage under law is a union of equals.
    A union, yes. A Marriage, NO.

    Truthfully you could only believe this statement to be accurate if you do not accept the precept that “marriage” under our creator God’s law is a union with a “purpose”. And that sacred purpose was granted the benevolent gift of procreation. There quite simply was no other reason to have made the humans “unlike” the other yet (essentially) equally “human”.

    The purposeful “bonding” of two humans to be considered “sanctified” and in this case become an oneness and recognized as united in “Holy Matrimony” is the only bonding we could ever consider as a Marriage. Any other similar arrangement is simply a State sponsored and granted civil right for unrelated individuals to (equally) co-habitat legally as a single unit.

  • Feeney

    * Bill Sr: With all due respect, you need to leave out the religious stuff. We need to march forward under the banner of the natural moral law — male, female, sexual reproduction, raising children. And we need to constantly make the point that there is no such thing as “homosexual marriage”. It’s an illusion.

  • Pat

    None of this matters. No straight marriages will fall apart b/c of this ruling. In fact, the evidence presented by the experts quoted in the decision suggests the opposite – that the entire institution of marriage will be strengthened by letting “Jane and Martha” finally marry each other after 30 years of a committed relationship. The tragedy is that the Mormon church spent millions of dollars convincing California citizens to vote for a law that is so clearly unconstitutional. Such waste.

  • DWiss

    jpe (#24)

    As usual I cannot express myself as well as Anchoress can…she said what needed to be said.

    I would only add that for you to arbitrarily redefine the word phobia to suit your own narrow meaning is laughable and wrong. Words mean things, and you should use them appropriately.

  • cathyf

    I have to say that I am most puzzled by the explicit rejection of civil unions by the courts. I’m less upset in the sense that I think it is an opportunity for churches to establish sacramental matrimony as something separate from whatever the heck it is that the government is doing. We already have a situation where the Catholic Church refuses to marry the divorced, even though they have no trouble getting marriage licenses from the government.

  • Pat

    @cathyf, I think the reasoning behind rejecting civil unions is the same reasoning that black people apply when they reject a law that requires them to use a different water fountain than the rest of us.

  • Brendan McGrath

    I’ve been thinking lately — apart from the distinct issue of the morality of homosexual acts and homosexual marriage in the Church, why should we as a Church be trying to prevent the legalization of civil homosexual marriage? If we’re going to try to make civil laws reflect natural law and the Church’s teachings on homosexuality, should we also be trying to make divorce illegal? If not, why not? Why are we trying to keep homosexual marriage illegal, but we’re not trying to make divorce illegal? Or contraception? Or adultery? (Obviously abortion, destruction of embryos, etc. is a different issue, since it’s a matter of murder, etc.)

    Should communion be denied to Catholic politicians who support keeping divorce and contraception legal? If not, why not?

  • tim maguire

    As far as the government is concerned, marriage is a mere contractual pairing and the government has neither the right nor a rational reason to limit it to one man and one woman. Churches will continue to have, as they currently have and have always had in the U.S., the right to refuse to conduct any marriage ceremony they don’t want to conduct. That longstanding right of churches reaches far beyond limiting the sex of the partners and is not under threat.

    That said, this decision will be overturned (unless DOMA was overturned when I wasn’t looking). WHich is just as well because, for it to survive the long haul, same sex marriage must come about through the ballot box.

  • Gail F

    Yes, we live in exile. Can’t we live in a little less exile instead of a little more? I am profoundly discouraged by this — although not surprised — and I am afraid that, as a parent, I will not be able to pass on the simple truth to my children. People can do whatever they want to, and can call it whatever they want to, but only a man can marry a woman. But why should my children believe me? When reality can be thrust aside by judges, public life is insane. We cannot make things be what they are not.

  • Bender

    Brendan, sorry, but your questions are entirely frivolous and disingenuous. Did you just wake up from a 50-year sleep? Those questions you raise have been discussed and discussed and discussed.

    Why should we as a Church be trying to prevent the legalization of civil homosexual marriage? Why?? Because there is no such thing as “homosexual marriage”; it does not exist and never has existed and cannot exist by definition. There is a meaning to “marriage,” it is not a matter of opinion, it is not a matter of desire, it is a matter of ontological, theological, and existential definition. Marriage is what it is and it cannot be, as a matter of simple logic, be something that it is not.

  • Azygos

    I have some questions about this. When did the government decide to require people to get a license to get married?

    And what was the motivation behind government getting involved?

    I suspect it is for the same reason the government always gets involved, to create another revenue stream, another tax if you will. Please correct me if I am wrong but I remember reading long ago that historically in the USA the government had nothing to do with marriage and it was not until figured out they could tax us that they got involved.

  • Bender

    Marriage pre-existed government. Government did not create marriage, so government cannot recreate it.

    It is not a matter of government “limiting” anything. For government, or the people by referendum, to “limit” marriage to a man and a woman is no more lacking in a rational basis than is limiting a triangle to having three and only three sides or limiting the sun to rising in the east. On the contrary, the wholly irrational and nonsensical argument is that marriage is now presto-chango something that it has never, ever been in the history of mankind.

    This is not a matter of “limiting” anything. Rather, it is a matter of government, in this case, the unelected judiciary, trying to expand something, trying to reinvent truth to something that it is not.

  • Bender

    If government never existed, same-sex “marriage” could never exist. It is a wholly judicial creation, an arbitrary construct fashioned out of whole cloth, and not something that could ever exist by virtue of the very nature of marriage and the nature of man and woman.

  • Pat

    @Brendan, your questions are brilliant. Unfortunately, as evidence of your noting our misguided actions, the RCC spent more $$ in Maine last year preventing gay people from getting married than it did in saving the thousands of Maine Catholics who got divorced last year. Sad.

    @ Gail, you will have to tell your children that gay marriages are just as legitimate as the marriage of divorced persons: that is, recognized by the State, but not by our Church. Not so hard, we’ve been doing it for years. (I assume your children are exposed to people whose civil marriage would NEVER pass muster as a Catholic marriage. Jew marrying Jew is another example.)

  • Pat

    @Bender, you are mistaken. Our written laws define what is a marriage, for purposes of construing our laws. This is NOT new. Consider it this way: if the lady next door sues you for civil divorce and half your money(!), claiming that you had a valid civil marriage because for 10 years she cleans your house and cooks for you and sometimes has sex with you, you are going to RUN to the law books to see what is a “marriage” for legal purposes and what is not. Same thing when a stranger’s child that you’ve been kind to and taken into your house for many years and maybe even given money to now and then one day claims to be a “child” of yours for legal purposes and entitled to share in your estate on your death. It doesn’t MATTER how you or I define marriage or child when we are construing estate laws or tax laws, or family laws, etc. What matters is what’s in the law books. And unconstitutional laws get erased from the law books.

  • JJM

    Fine then.

    Let anyone complete a proforma civil registration and obtain a “license” for legal purposes.

    Religious ceremonies would become entirely separate and private.

    The state will pay a price for this though, as communities increasingly feel disaffected and withdraw into themselves.

    We might all be heading the way of the Amish and the Hassidim!

  • http://redcardigan.blogspot.com/ Erin Manning

    Anyone who thinks that the churches will be left alone in regard to marriage should think again. In Judge Walker’s decision there is this:

    77. Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.

    Got that? Religious beliefs that teach that same-sex acts are sinful as are the relationships formed around such acts *harm* gays and lesbians. Catholicism *harms* gays and lesbians. Other religions with similar beliefs *harm* gays and lesbians.

    The secular state in the person of Judge Walker has declared war on the Church with that language.


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