Judicial Activism: Same Sex Marriage And The Aftermath Of Proposition 8
MARRIAGE RESTRICTIONIST ARGUMENTS AGAINST SAME-SEX MARRIAGE
Professor Cianciarulo raises a very interesting point in her article—the main arguments for prohibiting same-sex marriage are not derived from legal premises or facts, but from supposed religious ideals, tradition and fear.
Religion
The analysis of the marriage process suggests that California’s system is not one of strictly religious foundation. The fact that the process is partially, and can be completely civil, makes a strong argument that religion has nothing to do with marriage—at least not legally. I can be argued that the absence of religious questions or doctrine from the marriage license is indicative of an intent to, at least legally, sever the connection between religion and marriage. And, if religion were such a key factor in the marriage process, why can a couple opt for a civil or a religious ceremony?
Traditional Marriage
Logically, it seems clear that most modern women do not long to maintain the traditional notions of marriage. The time for considering a wife to be property and for denying women their rights based on their gender and their marital status are behind us—and thankfully so. Women fought long and hard, and continue to fight, to overcome oppression and subjugation, and none (I assume) wish to return to the shadows of their husbands.
Just as the role of women in marriage, and in society in general, has changed, so too must other elements of traditional institutions. We as a society change. Our notions of justice and decency change, and our laws need to keep up as we evolve. The argument that things should not change is clearly erroneous. If society never freed itself from its traditions, what would our country look like today?
Sanctity of Marriage
Professor Cianciarulo suggests that the institution of marriage itself is not sacred. People, all people, when joined together in love and with dedication to one another, create a sacred bond. “Marriage is what people make it.” So, why not promote happiness, tolerance and love instead of discrimination, fear and intolerance?
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