Heh. Thought so.

Right. That’s why I keep using the word.

You keep hoping that nobody will notice that ‘relatively’ part. Of course it’s a question of fact; when you start with false premises, the ‘facts’ follow naturally when you line them up just so.

I’m not trying to pretend anything, Mythago. I’m trying to make an accurate description of a legal regime - and to draw a distinction between something that’s a bedrock foundational principle of same, and something that isn’t. Some things about our marriage laws are foundational - there from the beginning. Other things are not.

If people are going to use “this is traditional and maybe we shouldn’t change it willy-nilly” as an argument - and they are, because that’s a valid argument in many cases - then we have to know the difference between what really is traditional, and what is of more recent vintage.

Anti-miscegenation laws are of relatively recent vintage, and are not part of the foundational jurisprudence concerning marriage and family laws. You can disagree, and you can be wrong.

I’m done arguing with you on this one; it’s a question of fact, not of opinion, and the facts are known. You’re wrong.

You’re twisting yourself into knots to pretend that three hundred years of American legal tradition is a blip that can be breezily dismissed when you don’t like the results. The idea that we can ignore any law less than half a millenium old is one even the crustiest Fourth Circuit judge wouldn’t try to float.

Actually, the foundation of American law includes a rather large strain of English jurisprudence.

Modern period, about three centuries of anti-miscegenation laws,

Only three centuries? Why, that’s like we invented it yesterday! Next you’ll be telling me we should really think about overhauling the sillier parts of the Bill of Rights, it being all newfangled and at odds with millenia of all men not being equal.

When arguments against gay marriage boil down to: “we’ve never done it this way before,” I am accordingly somewhat underwhelmed.

(OK, a digression for the most obscure joke ever to be posted on Alas:

The Roman patrician said to his plebeian lover, “Alas, the law forbids it; I cannot marry you.” She replied, “oh yes you can, you liar!”*)

/digression:

Medieval law, including English common law, is silent on the question of mixed-race marriages; they didn’t care. Admittedly, this may be because there wasn’t that much racial mixing going on in pre-colonial days, but regardless. The first law against mixed-race marriage that I can find was in Maryland in 1664; the idea spread through North America, although civil rights activists of the 19th century fought against it, and even achieved some limited successes in overturning such laws in liberal bastions like Massachusetts.

The laws never got a foothold in South America; it was an innovation peculiar to America and Canada. The laws were overturned finally in 1967 in the aptly-named Loving decision.

So: Ancient period, no anti-miscegenation laws. Medieval period, no anti-miscegenation laws. Modern period, about three centuries of anti-miscegenation laws, which were finally chucked out after some effort.

So be baffled all you like - but an innovation dreamed up by some wackaloons that broke a tradition of race being a legal irrelevance to marriage is, in fact, the way it was. The fact that it was settled law when our grandparents were young doesn’t make it Dawn of Time stuff, as easy as it is to fall into that error; the pedigree is comparatively recent, local, and now-discredited. (Hooray.)

* It’s an inter-lingual pun, and a pretty good one. The Lex Canuleia - pronounced, pretty much, “les can you liar”, was a popular law passed in 445 BC that overturned one of the Republic’s foundational laws and legalized marriages between plebeians and patricians.

I would agree that the last thing in the world we’d want is for Roman Catholic/Anglican/Baptist/etc. clerics to have seats in our legislature on the basis of their clerical positions and be able to form legislation, nor do we want legislation to have to be submitted to some body for examination for it’s conformance to a given holy text (and that body’s interpretations of same). That would be an “establishment of religion”. But it’s perfectly legitimate for a given group of people, be they clerical or lay, to vote in accordance with their own religious beliefs and to urge others to do the same. That’s not a violation of either separation of Church and State or the First Amendment. Although the former group, if acting in their official capacity, might have to abandon their tax-free not-for-profit status.

Hm. I’m no fan of flogging, but sometimes I think a day or two in stocks in the public square (or shopping mall, these days) might be a more effective deterrent for some minor crimes than what we’re using now. ;-)

No, the test of time is not worthless, but I’d be careful when using that argument.

Granted!

Obviously, Mythago. “We’ve done it this way for [x] thousand years” is not an absolute, or even overwhelmingly powerful, argument, but it obviously is an argument. Empirical survival is an excellent guide to the viability of an idea.

Sometimes we must discard even ideas which have stood the test of time, because the fail some other test, such as moral acceptability. That doesn’t make the test of time worthless.

No, the test of time is not worthless, but I’d be careful when using that argument.

For an easy example, human bondage has quite a long history, back into the deeps of time in most cultures, and it’s still alive today, out in the open, in some places in Africa. Empirical survival makes it viable? Well, yes, but that doesn’t make it right. Similarly corporal punishment, infanticide of the disabled (or simply of a child no one wants particularly), criminal punishment for the mentally ill (a practice not yet deceased) and any number of other ideas which have a long long history.

When proponents of discrimination against gays use the “well we’ve been beating you over the head for x thousand years and that makes it OK” argument, they are not making a very strong case, especially in light of these other examples. I’m suspecting that this argument is being used a lot these days because these folks are sort of scraping around the bottom of the barrel for arguments.

Sometimes we must discard even ideas which have stood the test of time, because the fail some other test, such as moral acceptability. That doesn’t make the test of time worthless.

So if the racists could have pointed to an ‘ancient lineage’, then in your view they would have had a point?

The law only recognizes marriage as a right to specific classes of people. For example, various levels of blood relationships are forbidden to marry. Various ages are forbidden to marry, or are qualified by getting a 3rd party’s approval. The law does not recognize it as a fundamental right to any two people who show up. Yes, the law was wrong to withhold it from interracial couples, but that was an innovation of racists (not something of ancient lineage) and it was properly overthrown. But even now it is limited for various reasons. Right now the law includes the genders of the two people involved as a proper reason.

Point 1 is the reason I’ll vote against it. The opinion of lawmakers and judges of points 2 and 3 are, however, relevant as to whether judges or the legislature can/will interpret the Constitution to permit/require it.

Historically, with many fits and starts and reversals, we in the West have come up with a different answer. We believe that the State is properly confined to the business of assuring order and of defending us from foreign enemies; that it is not the proper business of the State to police moral behavior.

I wish such were the case. That’s the ideal. But a lot of the West seem to be hell-bent on making the State the guarantor for your housing and job and to be legislating such moral issues as “hate speech”.

Let us assume, per impossible that we really KNEW, for sure, that,( pick your own) [playing cards] [drinking] [having heterosexual relations before marriage] [gay marriage] [dancing] are, although victimless crimes, nevertheless morally wrong, a stench in the nostrils of God the Most High.
If we knew this, is it the State’s job, therefore, to prohibit these behaviors by force of the law, which means in the last analysis, force of arms? To what extent is the State properly in the business of enforcing the Will of God?

To this question fanatical Muslims have an answer, and that answer is, Yes, it IS the business of the State to enforce the Will of God, even as to matters of dress and comportment.

Historically, with many fits and starts and reversals, we in the West have come up with a different answer. We believe that the State is properly confined to the business of assuring order and of defending us from foreign enemies; that it is not the proper business of the State to police moral behavior.

Even if RonF really thinks that homosexual behavior/marriage is wrong.