Justin: This post by Oswald Sorbino is not on gay marriage per se, but has some interesting ideas about the origins of the gay lifestyle in general. Good reading.

"With homosexuals, no test is required, because the relationship is infertile by its nature." I think you get closest to the heart of the matter here. Marriage is, by its nature, the union of a man and a woman because, by its nature, such a union is capable of producing children. Whether a given man-woman couple is actually fertile is, therefore, a red herring because it says nothing against the nature of the institution. (The pro-homosexual argument confuses nature and person, just as many ancient [or modern, for that matter] Christian heretics did.) Of course, in an increasingly secular (specifically po-mo) world, where the very idea that gender/sex is according to nature rather than artificially constructed by cultural conditioning, this point would not merely be lost, but positively derided. That is another reason why only the Catholic faith offers a real counter to pro-homosexual arguments.

"Marriage is, by its nature, the union of a man and a woman because, by its nature, such a union is capable of producing children."

No - this is not true. Procreation is based on nature - without a doubt and I can accept that parenthood (mothers and fathers) is based on 'nature' for the same reasons as procreation. But 'marriage' is simply not.

Maybe the difference is between civil (or legal) marriage versus Christian or religious or holy marriage.

"That is another reason why only the Catholic faith offers a real counter to pro-homosexual arguments."

The simple solution would be to have two different types or levels of marriage - one for civil or secular purposes (which could allow gays and older people) and religious marriage - which would not.

But the issue here is whether there is a legitimate reason to exclude committed same-sex relationships from having the same legal status and benefits as committed opposite-sex relationships.

And arguments based on theology cannot be used due to the separation of Church and State. I agree that the separation of Church and State has been inaccurately applied numerous times - but in this instance, it is applicable.

"And arguments based on theology cannot be used due to the separation of Church and State." Ah. I see. The arguments that are, in fact, the most coherent and persuasive against your position are ruled out of bounds. How wonderfully convenient for you.

"And arguments based on theology cannot be used due to the separation of Church and State."

Um, no. Separation of Church and State refers only to formal structures -- that corporate quality is pretty much what distinguishes "Church" from "Religion" and "State" from "Society." Separation of religion and society isn't even possible, never mind desirable or not. In no way does the separation of church and state (in idea that in the West originated with Christianity, BTW) imply that religious arguments are ruled out in the culture or in public deliberation. They may be relatively less persuasive at certain cultural moments than at others, but "religion," in the broadest sense, is at the heart of every law and every public deliberation therein.

Um, yes.

It is true that the theological argument is coherent and persuasive in its own context. I'd even argue that they are THE ONLY arguments I've seen that are. But the reality is that those arguments are 'out of bounds' from a legal perspective. The Bible is not the Constitution. There are laws in the Constitution which are based on scripture but the fact remains that the argument that homosexuality is against holy scripture does not therefore mean that homosexuality is or should be against the law. If that were the case, there would be no need for the proposed amendment. Not to mention the many other legal implications where legality differs from scripture.

As an attorney I can say with certainty that the "seperation of church and state" (I am assuming you are reffering to the 1st Amendment establishment clause) has NO bearing on what laws are passed or why.
(they can be based in theology, scripture, or the back of a cracker jack box) as long as they dont establish a state religion - then there A-OK as far as the Constitution is concerned.

"There are laws in the Constitution which are based on scripture but the fact remains that the argument that homosexuality is against holy scripture does not therefore mean that homosexuality is or should be against the law."

— Yes, but your personally held view of the law and society doesn't mean that it isn't or shouldn't be. As a point of fact, the law is based on what the people say it is based on. This is true even at the Constitutional level, with the caveate that more people have to agree. That is the danger of an activist judiciary: it makes the Constitution instantly rewritable on the basis of whatever ideology drives the social class of the judges.

Your method of winning this argument is essentially tautological; you assert that gay marriage is a civil right protected by the Constitution and is, therefore, beyond legislation — from whatever perspective. To win, you must prove not only that homosexuals have a right to be married in a personal sense, with which I would agree, but that they have a right to government recognition. Personally, I don't believe even heterosexuals have that right.

Thus, the argument becomes that homosexuals have a right to be treated exactly as heterosexuals are. And, as a point of fact, they are: they can enter into marriage as traditionally understood. To dispute the decisiveness of that claim, you must argue that a marital relationship between two people of the same sex is indistinguishable, in any way in which the government has a legitimate interest, from an opposite sex marital relationship. Because that case cannot be made, those who support gay marriage tend to go a long way through many brambles to disguise that fact. As it happens, you pointed the way further up:

"Procreation is based on nature - without a doubt and I can accept that parenthood (mothers and fathers) is based on 'nature' for the same reasons as procreation. But 'marriage' is simply not."

Resolution: marriage is based on parenthood.

Incidentally:

The post to which someguy makes reference in the first comment is linked on his name, and it is worth reading.

"But the reality is that those arguments are 'out of bounds' from a legal perspective."

Sez who? If laws being based on religious arguments makes the laws out of bounds as such, we will have no laws at all. You're not even attempting to grappling with the differences between "Church" and "Religion" and "State" and "Society."

Yes, the Bible is not binding law, as in Calvin's Geneva. The fact the Bible condemns homosexuality *in and of itself* does not make it illegal. And in a nonconfessional polity, there are empirical limits to how successful that Biblical or religious argument will be in drafting the secular law.

But, Mark, you're making the formal corporate separation of church and state mean much more than it does. The law is whatever the people say it is, and they can be persuaded by any means to which they are willing to listen. For some people, those arguments will be religious; others not. But that's an empirical judgment, not a dispositive legal argument.

Good post - great site,
Keep up the good work!
Thanks
Fitz

Yes, you are correct that a law can be created based on anything (I like the 'cracker jack box' line) but what I meant to say was that the use of theology as the sole reason for law is not a particularly good argument if there is no other compelling state interest which implies to 'this' world.

But you are correct that if the legislature and its constituents are persuaded, then it can become law - unless the law is deemed 'unconstitutional'.

I don't agree that 'the case' has not been made that same-sex relationships are indistinguishable from opposite-sex relationships from a public policy context. Obviously the Mass. Supreme Court is an example.

If the constitutional case against recognition of gay-relationships is so strong as you it is, then what is the need for a Constitutional amendment ?

Finally, marriage is NOT based on parenthood. Parenthood is a symptom of marriage. In the ideal, parenthood is based on marriage, but not the other way round.