Constitutional Debate

I did a post about the Bill of Rights the other day. I've had a couple of comments disagreeing with my position that the institution of marriage should be expanded to include people of the same sex as was done in California last week. Both comments from Pos (a smart guy) and Curmudgeon (a smart guy and a lawyer) argued that "marriage" should be a matter of a civil contract. A guy and a girl, a girl and a girl, a guy and a guy. They form a partnership and register it with the government. The government enforces their commitments to each other and that is the end of its involvement. If the couple, their family and their friends are religious, they are free to have a religious ceremony and call their partnership whatever they choose, marriage, civil union, domestic partnership. If the couple, family and friends aren't religious, they can call their partnership whatever they want to call it and have a party to celebrate it.

I agree, if, a big if, governments establish a one size fits all law for registry of such partnerships. But so far that hasn't happened; and, I don't see it happening. Our governments (read people that run them), at every level, love to meddle in our personal lives. Prime example: there's a movement gaining strength in California to pass an amendment to its constitution to define a marriage as one man and one woman so as to put those activist judges in their place. And just what does that get them? A moral victory as California has extensive "civil union" statutes giving homosexuals pretty much the same rights that heterosexuals have. The majority will get to rub the minority's collective nose in the dirt. "Nyah, nyah, we can get married, God loves us and condemns you."

Curmudgeon argues that when marriage laws were enacted in the mists of the past, consideration of same sex marriage was unthinkable. He's absolutely right. Over the centuries it has been unthinkable for black people to be thought of as human and unthinkable for a white person to marry a black person. It used to be quite thinkable for US citizens of Japanese ancestry to be interned without due process, for poor people to be thrown into jail and prison without a lawyer's representation and for police to beat "confessions" out of suspects. The list can go on. In some government quarters it is currently quite patriotic to lock people away upon suspicion of terrorism without a hearing, without evidence and without meaningful representation. My point is this, historical wrongs do not provide the legitimate basis for continuing those wrongs. (For a tour de force exposition of historical discrimination as a valid basis for current discrimination, read Chief Justice Rehnquist's majority opinion in Bowers v. Hardwick.)

Curmudgeon is also right that our current Supreme Court often finds ways to enhance federal power over that of the states, unless the desired outcome is better served by "reserving the matter to the states." Justice Scalia is a master at that pastime.

I agree with Curmudgeon that all of this "should" be a non-issue. The trouble is that given our species' general cussedness, discrimination is and will be an issue. I think the eventual solution is cultural and economic assimilation, but that has been and will be a very, very slow process.
Curmudgeon writes in essence that our melting pot isn't melting very well. We are fractured culturally, ethnically and economically, with the Federal government acting as a traffic cop sorting out group rights. He says "[n]o one talks or writes about what unites us and makes us all Americans." I think the "what" is the explicit and implicit freedoms found in our Constitution, the unenumerated "right to be let alone." Where governments (again, read the people running them) act to violate those rights, the law delivers a push back toward basic equality. Normative law theorizes that the push backs effected by law will normalize our relations. That's what we need until the melting pot does its job.