Constitutionalizing Social Values

[guayiya]

>
>
>But the FMA can't be simply dismissed, either
>as a matter of the Establishment Clause, or Establishment Clause values, as
>improper because it's supported by some (or even most) of its supporters for
>religious reasons.
>
Surely this fact is highly relevant, even if not dispositive.  What more 
is needed?  The absence of a valid secular purpose.
But, for those who see Sunday  closing laws and even Christmas  creches 
as secular,  it's hard to see how anything can  be a forbidden 
"establishment."

>  
>
>   But current marriage laws do not really *prohibit* same-sex marriage 
> any more than they prohibit marriage between people and trees or 
> people and animals.  Rather, current marriage laws define marriage as 
> the union of a man and a woman, thus elevating this particular 
> relationship - from among the multitude of other relationships in 
> society, many of which are valuable on their own terms - as having an 
> established value to society and as being foundational in the 
> generation of future generations.
>
>  In sum, as I noted, there is a world of difference between 
> de-criminalizing certain behavior, protecting the dignity of private 
> conduct, or accepting human flaws (such as by no-fault-divorce), as 
> one category, and instead as another category enshrining a particular 
> relationship as superior to most other relationships (i.e., other 
> familial, affectional, fraternal, social, etc.) and as equivalent in 
> legal standing to the marriage relationship that has been the bedrock 
> of society.  The approval of same-sex marriage is unavoidably a 
> societal endorsement and commendation, not merely a matter of 
> tolerating and accepting diversity.
>
Why isn't this like saying that allowing a business to incorporate 
implies an endorsement and commendation of its specific activities?  On 
the contrary: by refusing to incorporate a casino, we single out their 
activity for moral condemnation. 

While marriage is said to be foundational for reproduction,  we do not 
deny this right to infertile man/woman couples.

Daniel Hoffman


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