PDA

View Full Version : On what legal/Constitutional grounds should gay marriage be banned?



McMike
08-05-2010, 08:20 AM
On what legal/Constitutional grounds should gay marriage be banned?

I've asked this question on another thread and I know others have posed the same question. I ask those who think about answering this question to carefully consider that The Constitution and the Bill of Rights do protect the minority from the majority in situations like this where the negating of the rights of a minority is enacted on the behalf of the majority without any legitimate legal claim backing up their action. Bear in mind that religion has NO bearing on any state's definition of marriage that will stand up to Constitutional scrutiny.

perldog007
08-05-2010, 08:23 AM
I would say it can't be banned on any constitutional grounds which would explain the impetus for a marriage amendment in some circles.

John Smith
08-05-2010, 08:25 AM
I would say it can't be banned on any constitutional grounds which would explain the impetus for a marriage amendment in some circles.

That's actually an excellent point. The fact that a constitutional amendment banning gay marriage was considered pretty much tells us that our constitution, as it is, allows for same sex marriage.

http://www.washingtonpost.com/wp-dyn/content/article/2006/06/07/AR2006060700830.html

Ian McColgin
08-05-2010, 08:26 AM
OK, there is no constitutional ground. Without a law, there is no legal ground so the question could be: What are the grounds for making gay marriage illegal? Given that this is a legal question, the answers should either be free of religious taint or be frankly advanced by people who's full agenda is a theocracy.

McMike
08-05-2010, 08:33 AM
I would say it can't be banned on any constitutional grounds which would explain the impetus for a marriage amendment in some circles.


That's actually an excellent point. The fact that a constitutional amendment banning gay marriage was considered pretty much tells us that our constitution, as it is, allows for same sex marriage.

http://www.washingtonpost.com/wp-dyn/content/article/2006/06/07/AR2006060700830.html

But then wouldn't removing the rights of a people have to be tested in regard to there having to be some substantive grounds for it? I suppose the question is, who's rights are infringed upon by allowing gays to marry, and what rights are being infringed upon?

McMike
08-05-2010, 08:54 AM
My intent in starting this thread was to see if there was any way a law, granting rights to one set of people and denying those same rights to another, could ever pass the "litmus test" of constitutionality, meaning equal protection under the law.

I know I may not have all the legalese to explain myself properly but I think most of you get where I'm coming from.

paul oman
08-05-2010, 08:54 AM
gov should stay out of marriage. It is really about collecting insurance, and other 'benefits' enjoyed by married couples. Let the insurance company, the hospitals etc. decide. If you don't like their policy - spend your money with someone/ someplace else. that is using public pressure to advance change rather than regulation.

sort of like my views on seat belts. Gov should stay out of it, but OK for insurance company to say you are not covered if you don't use the seat belt.

RonW
08-05-2010, 09:03 AM
THOU SHALL NOT .

Uh yea those laws.

Pugwash
08-05-2010, 09:09 AM
THOU SHALL NOT .

Uh yea those laws.

You never fail to not surprise.

However, the 10 commandments says nothing about faggotry.

Unless you're delving into Leviticus, in which case we're all screwed.

RonW
08-05-2010, 09:20 AM
Come to think of it, isn't there sodomy laws still on the books around the country?

Hey norm does your religion practice homosexuality?

Well done Mr. Pugwash..

McMike
08-05-2010, 09:21 AM
From the ruling:



For the reasons stated in the sections that follow, the

evidence presented at trial fatally undermines the premises
underlying proponentsí proffered rationales for Proposition 8. An
initiative measure adopted by the voters deserves great respect.
The considered views and opinions of even the most highly qualified
scholars and experts seldom outweigh the determinations of the
voters. When challenged, however, the votersí determinations must
find at least some support in evidence. This is especially so when
those determinations enact into law classifications of persons.
Conjecture, speculation and fears are not enough. Still less will
the moral disapprobation of a group or class of citizens suffice,
no matter how large the majority that shares that view. The
evidence demonstrated beyond serious reckoning that Proposition 8
finds support only in such disapproval. As such, Proposition 8 is
beyond the constitutional reach of the voters or their representatives.

OconeePirate
08-05-2010, 10:14 AM
As I've stated before, I see marriage as a primarily religious institution. I don't see why the government has permission to get involved in one way or another. I think its a holdover from when "all men created equal" referred to white, land owning, males. Now women have full rights and there is no reason for them to lock themselves to a man, and no reason for a man to need to lock his ol' lady to himself. Not on a legal level at least. If people want to ensure themselves the possible of alimony, splitting assets, that kind of thing let themselves get married in front of whatever witchdoctor, veterinarian, Tunnel of Love captain they wish and then go in front of a lawyer and fill out appropriate legal contracts to keep things straight in case they ever wish to dissolve that union.

SamSam
08-05-2010, 10:23 AM
As I've stated before, I see marriage as a primarily religious institution. I don't see why the government has permission to get involved in one way or another. I think its a holdover from when "all men created equal" referred to white, land owning, males. Now women have full rights and there is no reason for them to lock themselves to a man, and no reason for a man to need to lock his ol' lady to himself. Not on a legal level at least. If people want to ensure themselves the possible of alimony, splitting assets, that kind of thing let themselves get married in front of whatever witchdoctor, veterinarian, Tunnel of Love captain they wish and then go in front of a lawyer and fill out appropriate legal contracts to keep things straight in case they ever wish to dissolve that union.What they wish won't have any effect on things such as job benefits, ability to join the military, etc. You have to change the legality of various systems and being right with God isn't going to be a solution.

Horace
08-05-2010, 11:04 AM
Perhaps it would be in order, for purposes of discussion, to accept a definition of marriage, and its context in modern (American) society. Otherwise, we're in danger of being the "6 blind Buddhists" mentioned in another thread. If there is already a commonly understood Bilge definition of marriage in place, forgive me.

As an aside, marriage predates and exists/existed outside white society of the late 18th century, and the attitudes commonly accepted in the time and place defined by the phrase "all men created equal" were neither the same as those in the earlier society of the 17th century, nor those of today.

Pugwash
08-05-2010, 11:39 AM
http://www.youtube.com/watch?v=rdH1ZEbnIms&feature=player_embedded

Horace
08-05-2010, 11:50 AM
1. Marriage=sex?
2. .....

Tom Montgomery
08-05-2010, 11:57 AM
Well done Mr. Pugwash..

So you believe all of the Mosaic Law still applies meaning all Christians are screwed?

Horace
08-05-2010, 12:20 PM
Norm: "Legal/Constitutional" and the gist of the OP don't necessarily limit the discussion to "Constitutional law." You ask your questions, I'll ask mine.

Since legal definitions are involved, and before Constitutional standards can be applied to determine what "rights" are being infringed and how, a definition of marriage, and then its place in our society, seems in order.

Or just read the judge's opinion and be a cheerleader, one way or t'other.

Ron Parvin
08-05-2010, 01:11 PM
It would be so simple for this nation to make a change from "marriage license" to "civil union contracts" that would serve both sides of the issue. A "civil union contract" becomes the nationally recognized legally binding contract allowing equal protection and rights to all. And those that wish to be "Married in the eyes of God" are subject the dictates of their religious affiliations, which is a morally and personally binding contract between the parties and their god.

Of course when can a nation do the simple thing?

John Smith
08-05-2010, 01:31 PM
But then wouldn't removing the rights of a people have to be tested in regard to there having to be some substantive grounds for it? I suppose the question is, who's rights are infringed upon by allowing gays to marry, and what rights are being infringed upon?

No one's rights are infringed upon if same sex couples marry.

One of the things I really don't understand about this country, other than it's driven by religion, is so many people being so concerned about stuff that has no impact on them.

The point of my link was to prove that it IS constitutional, as an amendment to the Constitution would be necessary to make it unconstitutional.

Kind of like when the prosecution in O.J.'s trial brought forth a witness to explain why the gloves didn't fit, they proved the gloves didn't fit.

John Smith
08-05-2010, 01:34 PM
gov should stay out of marriage. It is really about collecting insurance, and other 'benefits' enjoyed by married couples. Let the insurance company, the hospitals etc. decide. If you don't like their policy - spend your money with someone/ someplace else. that is using public pressure to advance change rather than regulation.

sort of like my views on seat belts. Gov should stay out of it, but OK for insurance company to say you are not covered if you don't use the seat belt.
The problem is that "marriage" IS A CONTRACT, A LEGAL CONTRACT, authorized by the government. It is the government who issues the license, the certificate, and the divorce. The church has nothing to do with marriage other than the priest et al may pronounce the couple man and wife by virtue of the power vested in him, which is vested in him BY THE STATE.

JimD
08-05-2010, 01:40 PM
Its rather obvious, isn't it? Every American has the right to own an arsenal of military weapons to defend him/herself against the tyranny of government.

Tristan
08-05-2010, 04:32 PM
Do you believe in sex between two adults, neither of whom is consenting?

McMike
08-05-2010, 04:35 PM
Do you believe in sex between two adults, neither of whom is consenting?

When the hell does that happen and what does it have to do with gay marriage?:confused:

Tristan
08-05-2010, 04:44 PM
When the hell does that happen and what does it have to do with gay marriage?:confused:

Might be two gays! You never know!

ILikeRust
08-05-2010, 04:45 PM
1. Marriage=sex?

You must be single.

JimD
08-05-2010, 04:48 PM
Do you believe in sex between two adults, neither of whom is consenting?

No but its such a disturbing image I wonder if I would have the strength to look away

htom
08-05-2010, 04:50 PM
There are no such grounds in the U.S.Constitution. None. There is no justification for the Federal Government being involved in marriage at all. Some State Constitutions have explicit mentions of marriage (some have none, too, IIRC); some have bans of various forms on gay marriage. Some States have laws banning it.

The justification for it is simple: those in power think that those who elect them want it banned, and banning it will help them remain in power. That's all. Just another reason to never vote for an incumbent, even if they're in favor of gay marriage!

Tristan
08-05-2010, 04:55 PM
When the hell does that happen and what does it have to do with gay marriage?:confused:

Relax, it's a joke. As for marriage, I believe anyone ought to be able to marry anyone of legal age, regardless of race, religion, sex, etc. BUT, how about mentally challenged individuals. Should a line be drawn at some point? There are always cans of worms.

JimD
08-05-2010, 04:59 PM
An aside, but in Canada homosexuality was only decriminalized in 1969. Holy Hannah what a world. Not only could they not marry, they could go to jail just for being born the way they are. We've come a fair way, but much farther to go. I'm so glad I'm not gay. Don't think I could handle the stress.

ILikeRust
08-05-2010, 05:01 PM
On what legal/Constitutional grounds should gay marriage be banned?

It's not so much a "ban" on gay marriage as it is a definition of the word "marriage" as it is used in various pieces of legislation.

As has been said upthread, I think a better question is what legitimate interest does government have in deciding who gets to marry who anyhow?

First, it's a state-level issue, as the federal government has no constitutional power to regulate marriage, although the relationship known as "marriage" is a concept used in various pieces of federal legislation, so there is a federal definition, which has been an issue in the past (see DOMA). Deciding who is allowed to marry, by being given a marriage license, is a purely state-level matter. The states retained what is known as "the police power"; i.e., the power to issue legislation to protect the health, safety, welfare and morals of its citizens. Marriage and other domestic relation laws are passed under the state's "police" powers. (BTW, don't confuse this with the cops - "the police" is a very old concept, dating to well before the establishment of organized civilian law enforcement agencies, and is the power to protect society's health, safety, welfare and morals.)

An awful lot of what states legislate is based on the exercise of the state's police powers. Blue laws, for example. Outlawing prostitution.

There are a few - but only a few - legitimate reasons why states do have a valid interest in assuring certain people do not marry each other. For example, immediate relatives. Society has a legitimate interest in not having brothers and sisters or parents and children marrying. Also, there is a legitimate interest in making sure very young people are not taken advantage of. It would not do to have creepos marrying 12 year olds.

But as far as two unrelated consenting adults who decide they want to make a serious commitment to each other, I totally agree that I can't see why the state has any legitimate interest in preventing them from doing so.

I have yet to see a convincing argument that is NOT based on the thumping of a bible as to how allowing two guys or two gals to marry each other "destroys the American family" or whatever nonsense those opposed to it spout.

We had a gay couple as neighbors for several years, and they were far better neighbors than most of the other "normal" hetero people on our block. They were together for about 12 years, until one of them died.

Those who argue against allowing it do so, I think, because of the "ick" factor - they think that the acts homosexuals engage in are "icky." But of course, the reality is that plenty of heteros engage in many of those same acts - which the Supreme Court has ruled states cannot outlaw, as between consenting adults.

Once you toss out the religion-based arguments, which really are the only objections, what valid reason is left?

I have yet to find one. Let them get married; how does that in any way affect my marriage to my wife? Ans: it doesn't.

Other than those few instances in which the state has a legitimate interest in preventing people from getting married (i.e., children, those who are unable to consent, immediate family members), the government should not be in the marriage business at all.

And there should be no difference in treatment under any law based on marital status. I have long wondered how the federal internal revenue code got away for so long with having the "marriage penalty." Seems a violation of equal protection to me - treating single people as a preferred class over married couples.

Captain Intrepid
08-05-2010, 05:03 PM
It would be so simple for this nation to make a change from "marriage license" to "civil union contracts" that would serve both sides of the issue. A "civil union contract" becomes the nationally recognized legally binding contract allowing equal protection and rights to all. And those that wish to be "Married in the eyes of God" are subject the dictates of their religious affiliations, which is a morally and personally binding contract between the parties and their god.

Of course when can a nation do the simple thing?

The silly thing is of course, the only difference between that idea and the current state of affairs is the name. Civil marriage and religious marriage are already completely different concepts.

RonW
08-05-2010, 05:23 PM
Hey norm, you ducked the question, so as you do I will do and ask again..



Hey norm does your religion practice homosexuality?

Glen Longino
08-05-2010, 05:34 PM
Hey norm, you ducked the question, so as you do I will do and ask again..

Norm was once wise for not answering your question.
You are twice stupid for asking it again.

stoneyreef
08-05-2010, 05:35 PM
Federal Constitutionally it should not be banned. It should be up to the state, but then again, we already went through this in the other thread.

McMike
08-05-2010, 05:52 PM
Relax, it's a joke. As for marriage, I believe anyone ought to be able to marry anyone of legal age, regardless of race, religion, sex, etc. BUT, how about mentally challenged individuals. Should a line be drawn at some point? There are always cans of worms.

I'm quite relaxed my man. I'm sorry I didn't get your joke, hard to see the target through the smoke here.

Flying Orca
08-05-2010, 06:05 PM
Hey norm does your religion practice homosexuality?

How, exactly, does a religion "practice homosexuality"? I'd figger that's something only individuals can do. And then only 'til they get it right.

Horace
08-05-2010, 06:16 PM
http://forum.woodenboat.com/images/misc/quote_icon.png Originally Posted by Horace http://forum.woodenboat.com/images/buttons/viewpost-right.png (http://forum.woodenboat.com/showthread.php?p=2677161#post2677161)
1. Marriage=sex?
2. .....
You must be single.

I was referring to the "6 blind Buddhists."

But yeah, I see your point. |:)

htom
08-05-2010, 06:48 PM
How can a religion practice (or not practice) homosexuality? Making rules for its members' practices isn't really the same thing.

Flying Orca
08-05-2010, 06:50 PM
Huh-huh. You said "members". Huh-huh.

Peerie Maa
08-05-2010, 06:51 PM
Huh-huh. You said "members". Huh-huh.

The master of the single entendre?

Flying Orca
08-05-2010, 06:56 PM
Just channeling Butt-Head for a sec. I think I'm better now.

Keith Wilson
08-05-2010, 07:54 PM
Ron, I'll answer that - (although it's a silly question; religions can't have sex, only people). My religion is 100% in favor of same-sex marriage. My wife the Reverend officiated at one for two women a couple of weeks ago - a "commitment ceremony", actually, since it isn't legal yet in Minnesota, but close enough.

And to point out the obvious once again: This does not affect traditional marriage in the slightest. Heterosexual couples can get married exactly as they always have.

elf
08-05-2010, 09:31 PM
Some interesting from Andrew Sullivan's blog here (http://andrewsullivan.theatlantic.com/the_daily_dish/2010/08/dont-publish-yet-reader-responses.html#more).

Pugwash
08-05-2010, 09:31 PM
Just channeling Butt-Head for a sec. I think I'm better now.

I read that as "channeling Butt-secs for head".

I must be dyslexic.

Captain Blight
08-06-2010, 02:15 AM
This is funny: the big bad republican hardcase, all full of testosterone and bluster, ready to send other men off to war to act as the Strong Right Arm--frightened of gay men. So not only do I see an uninformed douchebag, I see a coward. Hypocritical, too, if he (they?) base the argument on the Gospels of Jesus. Oh, I'm sure there's always Leviticus to turn to; but I personally think the half-mad rantings of a bunch of Bronze Age goatherds are hardly a sound basis for public policy.