I'm skeptical of the comparison between presidential rights and marriage . . . the key difference is the institution of the presidency is wholly created by the Constitution. Prior to the Constitution, there was no such thing as the presidency.

Not so with marriage. Marriage, while shaped by law, predates the Constitution, and from a theological perspective, predates the very notion of government. So the Constitution does create the rights/restrictions attached to the presidency, just as state and federal law create the legal effects attached to marriage (but not marriage itself). But the law also recognizes the institution of marriage in a way that cannot be said of the presidency.

Surely you are right to say that it is not unconstitutional to define marriage legally. The question is what governing entity has the proper authority to do so (as you rightly point out near your conclusion). The restrictions on the presidency were proposed by the Constitutional Convention and voted on by democratic representatives of the thirteen states. This is not the case with the courts “defining marriage.” In this case it is not the content of the decision that can be labelled unconstitutional, but the method (perhaps extra-constitutional would be a better term). For nowhere does the Constitution authorize the judicial branch to overturn the branches popularly elected by, and accountable to, the people. But the validity and limits of judicial review may be another discussion entirely.

I'd also be wary of the civil rights question. Before Loving v. Virginia in 1967 laws prohibiting racially-mixed marriages were still on the books. Blacks, and whites, were both held to the same standard of equality given the legal definition of marriage at the time. Both races were equally barred from marrying someone from another race. But I still think this was a civil rights issue. I also think the two cases can be pretty easily distinguished, but know from experience that this is what will be thrown back at you by those who disagree.

Re: Judge Declares Marriage Definition Unconstitutional
by Roger at 10:33PM (PST) on Mar 15, 2005
I agree with Micah up until the last point on civil rights. To quote my boss, “Same-sex marriage and interracial marriage have nothing in common. There is no difference between a black and a white human being because skin color is morally trivial. There is an enormous differemce, however, between a man and a woman. Ethnicity has no bearing on marriage. Sex is fundamental to marriage.” (Greg Koukl, Solid Ground May/June 2004)

Sex is fundamental to marriage because the purpose of marriage is to secure the next generation through families. Skin color has no bearing, but two men can't produce kids- there's a huge difference.

One of the things that bothered me was that the only two new reports on this decision I read made no mention of the people of California already having defined marriage between a man and a woman (I believe it was Prop 22). As though it never really happened. Perhaps the judge and others who are like-minded wish it hadn't, but that doesn't change the facts.

Re: Re: Judge Declares Marriage Definition Unconstitutional
by Micah at 03:22AM (PST) on Mar 16, 2005
Roger I completely agree with you and should have been more clear in my final paragraph. Here's how I ended:

“I also think the two cases can be pretty easily distinguished, but know from experience that this is what will be thrown back at you by those who disagree.”

What I was trying to do was anticipate what the other side will throw back, IF we hold that equal opportunity by itself is the only criterion we use to think about whether the issue is one of civil rights. We have to consider the merit of the characteristic, and here we agree that making legal distinctions based on skin color is a heinous act, whereas making distinctions basesd on sexual behavior/predilection/disposition is not heinous, and indeed often morally required (while maintaining the respect for that Amy mentioned).

Re: Judge Declares Marriage Definition Unconstitutional
by Amy at 07:35AM (PST) on Mar 16, 2005
Micah, I agree with you that marriage is recognized and not created by any government. Approaching this from a merely legal direction, though, my only argument here is that it's not unconstitutional to place limits on an institution. It follows then that it's not unconstitutional to receognize the natural limits of an institution.

Roger, also great comment. We can only discriminate legally for relevant differences. Skin color is not relevant, but sex is. I guess what this all comes down to is whether or not you believe that men and women are inherently different (physically and emotionally). I think confusion about this in our society is at the very root of this whole controversy.

Re: Re: Judge Declares Marriage Definition Unconstitutional
by R. M. Sivulka at 10:56PM (PST) on Mar 16, 2005
I'm sorry, but I just don't get it. Why should some individual judge over throw the will of the CA people (prop 54–I think that's the right #) to define an institution? Simply because it's unconstitutional? With this rationale it would also be unconstitutional to rule out incestuous marriages, or for that matter, marriages of whatever deviant sort. So now some radical judge is going against the historically predominant understanding of what has been sanctioned as the basis for a family. Face was right to have us step back and ask what reasons “society” has had for endorsing the marriages of different, non-familial sexes while not endorsing the marriages of other aberrant sorts. She was also right to call attention to the fact that this is *not* a civil rights issue. Even gays can, and in fact do, enter into a governmentally (btw, “we” are the government in this country) recognized marital relationship (i.e., with members of the opposite sex).