You're still missing the point, and why I made the analogy. Your original post:
"Tradition. You've got to be fucking kidding me. TRADITION is a good enough reason to deny people basic human rights? Find me the people who think so right now. I'd like to initiate them into the tradition of me stabbing them in the groin with rusty knives."
But no one's saying that people should be denied basic human rights because of tradition, but that the activity being considered isn't a basic human right because of tradition. You're mixing up the logic of the argument, and using that to say that opponents are opposed to basic human rights. That's the point of the analogy to a "right to frosty chocolate milkshakes"--which was the first thing that came to mind because I was drinking a chocolate egg cream at the time. That was the entire point of the analogy. To say there's no right to gay marriage requires a lot more analysis than it takes to dismiss the right to milkshakes.
And, well, you've basically said that "X is not a right because of tradition" is a valid argument. As you said,
"Rights are not arbitrary. They are not doled out according to personal tastes. (Hey, I don't like milkshakes. Does that mean I don't like human rights?) They have evolved with thought and time and conscience. We recognize certain things as taboo--murder, theft, etc.--just as surely as we recognize things as (secularly) sacred--love, respect, etc. Our self-awareness is that these things are not owed but owned by every person by virtue of their sentience." (emphasis mine)
Marriage may have evolved with thought and time and conscience, but gay marriage is a much harder sell; it's essentially a new phenomenon. That's why it's hard to claim that there's a right to it, particularly one enshrined in a Constitution written over 200 years ago. And when we established the concept of a right to marriage in U.S. Constitutional law, it was based not on the right to love (doesn't exist, and if it does, where can I get some?), but on the right to procreate legitimately--see Loving v. Virginia.
So no, there shouldn't be a constitutional right to same-sex marriage; to the extent there's any right to marriage (which is a derived rather than enumerated right), it was explicitly based on the right to procreate and can therefore only apply to heterosexual marriage. There is now, as far as precedent is concerned (I think it's a bad precedent), a right to do pretty much whatever you want with respect to sexual acts (Lawrence v. Texas), but that's very different from a right to have a relationship recognized and granted privileges by the state.
As far as basic human rights are concerned, well...where do those come from? If they come from some concept of international law, there's no right to gay marriage. If they come from a concept of natural rights or natural law, it's hard to justify a right to gay marriage. As a legal concept, it's hard to get to a right to gay marriage, period--that's why almost no court has done so.
The actual Cal. Sup. Ct. decision had multiple parts; they held that the fundamental right to marriage (correct) includes same-sex marriages (incorrect), and as a separate grounds for decision, held that under California's version of equal protection, they can't treat gays and straights differently without a compelling state interest, and there is no such compelling state interest (correct). So, were I a Cal. Sup. Ct. justice, I would have filed a concurring opinion with the majority, agreeing in the result but only agreeing in the reasoning as to the equal protection analysis.
no subject
"Tradition. You've got to be fucking kidding me. TRADITION is a good enough reason to deny people basic human rights? Find me the people who think so right now. I'd like to initiate them into the tradition of me stabbing them in the groin with rusty knives."
But no one's saying that people should be denied basic human rights because of tradition, but that the activity being considered isn't a basic human right because of tradition. You're mixing up the logic of the argument, and using that to say that opponents are opposed to basic human rights. That's the point of the analogy to a "right to frosty chocolate milkshakes"--which was the first thing that came to mind because I was drinking a chocolate egg cream at the time. That was the entire point of the analogy. To say there's no right to gay marriage requires a lot more analysis than it takes to dismiss the right to milkshakes.
And, well, you've basically said that "X is not a right because of tradition" is a valid argument. As you said,
"Rights are not arbitrary. They are not doled out according to personal tastes. (Hey, I don't like milkshakes. Does that mean I don't like human rights?) They have evolved with thought and time and conscience. We recognize certain things as taboo--murder, theft, etc.--just as surely as we recognize things as (secularly) sacred--love, respect, etc. Our self-awareness is that these things are not owed but owned by every person by virtue of their sentience." (emphasis mine)
Marriage may have evolved with thought and time and conscience, but gay marriage is a much harder sell; it's essentially a new phenomenon. That's why it's hard to claim that there's a right to it, particularly one enshrined in a Constitution written over 200 years ago. And when we established the concept of a right to marriage in U.S. Constitutional law, it was based not on the right to love (doesn't exist, and if it does, where can I get some?), but on the right to procreate legitimately--see Loving v. Virginia.
So no, there shouldn't be a constitutional right to same-sex marriage; to the extent there's any right to marriage (which is a derived rather than enumerated right), it was explicitly based on the right to procreate and can therefore only apply to heterosexual marriage. There is now, as far as precedent is concerned (I think it's a bad precedent), a right to do pretty much whatever you want with respect to sexual acts (Lawrence v. Texas), but that's very different from a right to have a relationship recognized and granted privileges by the state.
As far as basic human rights are concerned, well...where do those come from? If they come from some concept of international law, there's no right to gay marriage. If they come from a concept of natural rights or natural law, it's hard to justify a right to gay marriage. As a legal concept, it's hard to get to a right to gay marriage, period--that's why almost no court has done so.
The actual Cal. Sup. Ct. decision had multiple parts; they held that the fundamental right to marriage (correct) includes same-sex marriages (incorrect), and as a separate grounds for decision, held that under California's version of equal protection, they can't treat gays and straights differently without a compelling state interest, and there is no such compelling state interest (correct). So, were I a Cal. Sup. Ct. justice, I would have filed a concurring opinion with the majority, agreeing in the result but only agreeing in the reasoning as to the equal protection analysis.