South Carolina Marriage Amendment

Xark, as usual, is commenting on hot-button issues and asking all of us to take a position. His latest challenge asks readers to speak out in opposition to the South Carolina Marriage Amendment:

"Must Article XVII of the Constitution of this State be amended by
adding Section 15 so as to provide that in this State and its political
subdivisions, a marriage between one man and one woman is the only
lawful domestic union that shall be valid or recognized; that this
State and its political subdivisions shall not create, recognize, or
give effect to a legal status, right, or claim created by another
jurisdiction respecting any other domestic union, however denominated;
that this amendment shall not impair any right or benefit extended by
the State or its political subdivisions other than a right or benefit
arising from a domestic union that is not valid or recognized in this
State; and that this amendment shall not prohibit or limit the ability
of parties other than th
e State or its political subdivisions from
entering into contracts or other legal instruments?"

The issue, like Xark’s call to arms on the environment some months back, guarantees passionate belief on both sides of the issue. But, what is the issue?  Is SC in the grip of conservative Neanderthals whose only goal is to keep the gay community suppressed, or is this a veiled attempt to attack all forms of social commitment outside of a legal definition of marriage, or is this another case of defending state’s rights in the face of judicial activism run amok?  It is, apparently, another battle in the Cultural War, which almost guarantees that the partisans of either side will not accept anything less than total obeisance to their position, nor will they brook any dissent.  And that’s too bad, because this really is a complicated matter, worthy of discussion without the introduction of shibboleths, bromides, and ad hominem attacks.

For a review of the status of similar legislation in our great country, go here . It is clear that our state is NOT leading the charge against gay marriage, or attempts to define marriage in a traditional sense. It is also true that, based on the action at the state level, a majority of citizens in a majority of states have voted "Yes" to their version of bills similar to this amendment.  Clearly, a vocal, well organized, politically oriented Minority seeks to challenge the status quo of this issue. That portion of the Citizenry is exercising their rights, as provided for and protected by the Constitution.  This is as it should be, and the voice of the People will be heard in November. 

For additional perspective on the issue, Stephen Den Beste comments here.  Please read his entire post, but here is an excerpt:

I support gay marriage. And I’m glad to see that a lot of states are
considering, or have already passed, amendments to their state constitutions
forbidding gay marriage. My position isn’t inconsistent, because there’s a
deeper issue involved.

What is the function of an electoral system? You can argue about that all
day, but it turns out that the deep purpose is to convince people to accept
that they’ve lost. We, as citizens of a republic, have made a compact with each
other that we will make certain decisions collectively through some combination
of voting and representation, and we know that inevitably the process will make
at least some decisions that we as individuals despise.

But our compact with one another is that if the process was reasonably honest
and if everyone participated, the losers will concede defeat. Of course, they
may try to work within the system to change those decisions, and that has
happened many times. But the compact is that such decisions change because the
majority agree with the change, and the activist minority will work to convince
the majority that change is needed, and will accept their defeat in the mean

Some activists in this country have been breaking this compact. It’s been a
particular problem with leftists over the last 35 years. Instead of trying to
convince the majority that certain things should change, they’ve been making an
end-run around the electoral system and getting those changes made via activist

Irrespective of the merits of individual decisions, the basic problem with
this is that it cheats the electorate by forbidding them from participating in
the process of collectively making those decisions. And the "losers" don’t
concede defeat, because they never got their chance to participate in the

Now, some could argue that his use of the word "leftist" is inappropriate, given that both sides have attempted to use the courts to further their agendas in the absence of legislative/citizen support, but his point is well considered.  We live in a democracy.  We have the right to vote on matters that are important. I will vote yes on the amendment, not because I oppose gay marriage, or common law marriage, or the denial of benefits to domestic partnerships; but because I support the right of the People to decide on the important issues of our time.


14 Replies to “South Carolina Marriage Amendment”

  1. Without taking issue with your argument for the moment, why does your position compel you to vote “yes?” It seems like your worries are met by the fact that the issue is even on the ballot. I’m in Georgia, so perhaps I’m missing something.

    I myself am ambivalent about the gay marriage debate. But I’m sure you’re familiar with the arguments against your position. A liberal democracy guarantees some minority rights against the passions of the majority. To use a previously used example: Should we have left Civil Rights up to Southern voters to decide?

    I’m not saying the issues are the same. I’m not quite convinced they are, for reasons I won’t get into here. But surely you recoginze that courts sometime function to check the prejudices of the majority, whose total rule you seem to advocate?

  2. Thanks, Ben for your comment. In hindsight, I may not have been clear enough in stating my intention to vote in favor of the referendum; so let me restate. I am voting yes, not in opposition to the issue, but because passage of the referendum removes the ability of the judiciary to decide for the people. I agree with your point that, at times, the minority needs protection from the majority. In this situation, however, I do not think the majority imposes an unreasonable burden on the minority. I also understand, as I stated originally, that my opinion as to the reasonableness or unreasonableness of the burden will not satisfy the minority. Unlike the civil rights issue, where certain parts of the country continued to act in defiance of Federal Law and Judicial decisions, and were, in themselves a minority, here it seems that a clear majority of the country as a whole is opposed to a judicial solution. At some point, as Den Beste argues, the minority needs to accept that their position is a minority position and that judicial interference is neither required nor needed.

  3. Indeed, this is not an issue about gay marriage but a much deeper on as Den Beste points out. To assume that “leftists” are unaware of the larger picture is erroneous.

    The idea that any minority must bend to the will of the majority without hope of recourse is anathema to the principles on which this country was founded. This is actually a republic, not a democracy, and rightly so, to avoid such egregious violations of civil rights.

    Yes, sometimes it means we live with things that make us uncomfortable, but we know that when our own beliefs make others uncomfortable, when we are in the minority, our rights will not be taken from us simply because we are outnumbered.

    To want such a precedent, to applaud the demise of judicial safeguard, is amazingly short-sighted and a mistake I fear we will all regret far too quickly.

  4. Janet: Thank you for your comments. I appreciate your perspective on the referendum, but I think we will part company on the role of the judiciary. As Den Beste pointed out, and you apparently agree, various interest groups have tended to rely on the courts to impose social solutions to their pet issue, thus subverting the role of democratic prinicples in the exercise of power in this country. In other words, you support judicial activism, and I oppose it. I disagree with the attempted comparison between the Civil Rights issue and the Gay Rights issue. That is one of the shibboleths that I mentioned in my post….cloaking all minority issues with the moral superiority of the CR struggle. In a world of your construct (based on your comments), anyone with any sort of grievance can claim persecution and seek redress through the court system, where a supposedly neutral judge, acting solely within her/his viewpoint, can erase or construct laws that will bend society to his/her will. In my opinion, that is neither Democracy, Republicanism, or Federalism. It is NOT what the Constitution had in mind lo those many years ago. The Judiciary was not established to solve societal problems, rather, it was established to determine the legality of laws created by the Legislative Branch.

  5. Good point and good reference, Agricola.

    As others point out, one of the founding principles of this country was to protect minorities from the opinion of the majority and allow them to practice thier views unmolested.

    Rather than debating this specific case ad-infinitum, I wonder if we could form some general principles about “what kind” of thing is protected for a minority and “how big” does the minority need to be before we protect it?

    We have strongly established that freedom of religion for even the minority of one, though place some limits on its expression (e.g. animal sacrifice).

    We also have strongly established freedom of speech for the minority of one but place some limits as to the purpose and context. (The whole “fire in a crowded theater thing”.)

    So, can we bound the problem? What freedoms will we guarantee and what will we refuse? Any suggestions?

  6. Agricola,
    Thank you for voting to make me 2nd class in our state’s Constitution.

    When and if this foolish, vote baiting, amendment is passed will you support my right not to have to pay Social Security taxes, school taxes, military taxes?

    Will I still be able to get a driving, fishing, hunting, gun license?

    I have already been turned away from jury duty because when I was asked what my marital status was I answered “The state does not recognize my relationship.”

    People who vote yes for this amendment have not walked a mile in my shoes.

    “Activist judges” sounds like a kid whining because the ref made a call he didn’t like.

  7. Uncle Z: Whoa, there, padnuh. Who said anything about taxes, license fees, and so forth? This amendment is about the state’s citizens voting on whether or not a single judge can create single sex marriages. Either they will vote to deny a judge’s power to make law, or they will vote to allow one person in robes to make law for the 3.5 million of us living in harmony in the beautiful Palmetto State. FYI, I personally don’t care who marries who, under what circumstances, nor do I care whether the marriage/union/civil service occurs in a church, on the beach, or in a cave. What I do care about is the ability of citizens to protect their right to vote on the major issues of the day; not have those issues decided by judicial fiat. Let’s not let this debate turn into attacks against one another. This is not going to be a forum for militant anything.

  8. “As usual” to borrow your phrase, I am being asked to defend a stance I did not take. I said nothing about believing the judicial branch of government has the right to subordinate decisions of the legislative branch. I said nothing about supporting “activist judges.”

    I don’t believe this amendment is about anything so high-minded. At best, it is about giving the government authority to determine the legitimacy of intrapersonal relationships. At worst, it is a blatant wedge issue to get conservatives to the polls.

    My firm belief is that the state has no business in such affairs. I believe I stated clearly that I see this amendment as a blatant attempt to subvert the notion that people are entitled to live unmolested even when they are outnumbered. The amendment merely states that the government can define which unions it recognizes and which ones it doesn’t and it has the right to curtail personal rights based on that definition. I find that a ridiculous abdication of power to a bunch of popularly elected bureaucrats, kinda like letting the Senior Superlatives in high school decide who you can take to the prom.

    Disagree with me on that if you will, but please don’t project political stances on me.

    The odd thing is that the idea of a non-intrusive government USED to be a conservative position. I now found myself arguing with Republicans AGAINST the insinuation of the state into its citizens’ private affairs.

  9. Janet said: “I believe I stated clearly that I see this amendment as a blatant attempt to subvert the notion that people are entitled to live unmolested even when they are outnumbered. The amendment merely states that the government can define which unions it recognizes and which ones it doesn’t and it has the right to curtail personal rights based on that definition. I find that a ridiculous abdication of power to a bunch of popularly elected bureaucrats, kinda like letting the Senior Superlatives in high school decide who you can take to the prom.”

    Agricola says: It’s not the government speaking, it is the people voting. It does not give the “government” unlimited power, but addresses a single, specific situation. As for our fine group of legislators, doing the people’s business in Columbia, to say that the use of a public referendum to decide the State’s position on the issus is a “ridiculous abdication of power to a bunch of popularly elected bureaucrats” says, clearly, that you do not believe in the democratic process, that you can’t depend on our representatives to govern, and that, apparently, the solution lies in the Judiciary. Did I get that right?

    Lastly, what current or existing rights are being curtailed or eliminated? Does the State of SC today recognize domestic untions? Will a successful passage of the SCMA remove an existing right from a minority of our citizens? Do businesses operating in our state currently offer benefits to the partners of employees regardless of mariatl status? If the answer is yes, will the SCMA force those employees to foreit their rights to benefits? I don’t know, and I would like for someone to provide those answers.

  10. I don’t think this issue is about anything other that not recognizing certain unions of individuals that care for one another. Not recognizing them AND curtailing their rights. Alot of the discussion I’m hearing is a smokescreen – hiding the fact that this is a prejudicial amendment. Vera left an eloquent comment on my site – about how not so long ago her relationship would not have been recognized – how crazy is that? I agree with her that we should all be ashamed if this amendment passes. I know that I will be. I’ve read (and re-read) your post, and nothing has convinced me otherwise.

  11. Pam…Thanks for the comment. I appreciate your position, and thank you for at least considering mine. As usual, you provide needed oil for the roiled seas of debate.

  12. Dear Agricola,

    You wrote “I personally don’t care who marries who, under what circumstances, nor do I care whether the marriage/union/civil service occurs in a church, on the beach, or in a cave.”

    Then why not vote no?
    … because …

    “What I do care about is the ability of citizens to protect their right to vote on the major issues of the day..”

    Poverty, Iraq, homelessness, education, health care, domestic violence and adultery would seem, to me, to be the issues of the day.

    “Let’s not let this debate turn into attacks against one another.”

    What would you do if you were verbally vilified on a daily basis since Clinton’s DOMA law was enacted? How would you feel if you saw organizations, like Focus on the Family, raise millions of dollars because a vast majority of this country worries who my husband/wife/partner is.

    “This is not going to be a forum for militant anything.”

    I’m going now. I’ve got too big a bone in this fight for your forum. I’m sorry I’m a militant homosexual with an agenda. I’m just trying to protect my civil rights and dignity.

  13. Agricola, so if the amendment were reversed – if it wrote an approval of gay marriage into the Constitution – would you vote for it then?

    That would also remove the possibility of judges deciding the issue.

    I should also amend my earlier post – I’m not ambivalent about amendments like this one. I’m against them. This one is particularly bad because it seems to rule out the possibilty of recognizing civil unions.

    (Beware: Digression follows)

    What I’m ambivalent about is Christian progressives’ (I’m one) quick, easy acceptance of homosexuality as easily reconcilable with the faith.

    I’m not saying it’s not – I’m friends with gay Christians and my impulse is to agree with their position. But we should at least allow ourselves to wrestle, seriously and respectfully, with our own tradition on the subject. I’m leery of a faith that drifts too easily with culture.

    Never, however, should we treat anyone with less than Christian love. Which is why I could wholeheartedly support civil unions.

    As I warned, that was a digression.

  14. Ben, thanks for the comment. To answer your question, yes, I would vote in favor of a referendum that created some type of civil union. I would prefer that the civil union authorized grant partners the same spousal rights recognized in conventional marriages, and the same strictures found in civil law; that is, divorce, alimony, child support, et cetera. Like you, I am somewhat conflicted about the acceptance of homosexuality in the modern Church. But, most life in the US today in conducted outside of the Church, thus civil unions are the sole province of the State.

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