1. This site uses cookies. By continuing to use this site, you are agreeing to our use of cookies. Learn More.

Same-sex marriage and the Constitution

Discussion in 'Current Events, World News, & LGBT News' started by Mogget, Dec 3, 2010.

  1. Mogget

    Full Member

    Joined:
    Mar 12, 2010
    Messages:
    2,397
    Likes Received:
    2
    Location:
    New England
    I've been reading a discussion online about whether denying same-sex marriage is unconstitutional (for the US Constitution). Unfortunately, it's getting bogged down by a lot of homophobic idiots, but anyways...it got me wondering. Does anyone here know if there's grounds to say that denying same-sex marriage is unconstitutional? I'm unconvinced by the arguments I've read, which seem to rest on the fact that denying same-sex marriage is wrong, not unlawful, though I think the Fourteenth Amendment might be in there somewhere too *is confused*

    ...Anyway, anyone have more knowledge than I do on the subject?
     
  2. Heyitsme

    Full Member

    Joined:
    Jun 5, 2010
    Messages:
    127
    Likes Received:
    0
    Location:
    Gainesville, Florida
    Gender:
    Male
    Gender Pronoun:
    He
    Sexual Orientation:
    Gay
    Out Status:
    Out to everyone
    Well it's not exactly the Constitution, but the Declaration of Independence, which the U.S. was founded on, does guarantee rights to life, liberty, and the pursuit of happiness, meaning one should theoretically be allowed to do as they please as long as it does not infringe on the rights of others. I'm not sure how strong of an argument that would be for it if you were talking strictly Constitution, though.
     
  3. ANightDude

    Full Member

    Joined:
    May 10, 2008
    Messages:
    1,151
    Likes Received:
    0
    Location:
    Santa Fe, New Mexico
    It is the 14th Amendment which clearly states that we all have equal protection under the law. This was challenged by Lawrence v. Texas in 2003, which led to the legalization of homosexuality nationwide. That's the amendment in which gay rights activists claim that gays are unequal when it comes to marriage.
     
  4. Charme

    Charme Guest

    I still think the Full Faith and Credit Clause can work either for or against gay marriage.
     
  5. mart83

    Regular Member

    Joined:
    Jun 20, 2010
    Messages:
    20
    Likes Received:
    0
    Location:
    US - Midwest
    Gender:
    Male
    Sexual Orientation:
    Gay
    Well, the constitution contains the 14th Amendment, which guarantees to all citizens equal protection of the laws. The Supreme Court has interpreted that to mean different things depending on who you're discriminating against. For instance, a law requiring firefighters or police officers to be able to run at a certain speed as a job requirement is discriminatory against those (like me) who can't run very fast, but courts have upheld those types of laws (rightfully so) by saying that there is a rational basis for doing so. Other classifications, like race or religion or gender, receive a higher level of scrutiny, and so it is a lot more difficult for states to discriminate on that basis. But it is not always illegal, like in the instance of certain affirmative action programs.

    So far, the US Supreme Court has refused to rule that sexual orientation deserves that higher form of scrutiny. Nevertheless, the court has struck down laws based on what it called an irrational animus against gay people. Most notably, it struck down a Colorado constitutional amendment that forbade individual cities from enacting ordinances that prohibited discrimination on the basis of sexual orientation. It said that the only reason that the citizens of Colorado enacted that amendment was to discriminate against the LGBT community.

    The Prop 8 decision was largely based on this standard. The judge determined that there was no rational basis for the citizens of California to enact Prop 8 other than an animus against the LGBT community. Two of the best attorneys in the country made that argument to a federal judge and were successful, so to answer your initial comment, the argument can certainly be made. Whether it is successful on appeal is another question......
     
  6. Chip

    Board Member Admin Team Advisor Full Member

    Joined:
    May 9, 2008
    Messages:
    16,551
    Likes Received:
    4,749
    Location:
    northern CA
    Gender:
    Male
    Gender Pronoun:
    He
    Sexual Orientation:
    Gay
    Out Status:
    Out to everyone
    Additionally, at the time the decision of the California judge was published, a lot of constitituional scholars commented that it was absolutely brilliant in that it basically laid out every conceivable constitutional argument that could be used against gay marriage and then soundly demolished them. The general consensus at the time seemed to be that because of the depth and detail of the judge's decision based on the merits of the case and the arguments made by both sides, there was very, very little wiggle room (based on his analysis) to justify overturning his decision at the appellate level.

    However, the Supremes don't necessarily rely on interpretations of lower courts (though they usually at least consider them) and often do a full re-analysis of cases they accept. And given that there are some real losers on the Supremes at the moment, it's a little hard to tell what sort of response they will come up with when the case makes it's way to them.

    We can hope that in the next year or two one or more of the losers on the Supreme Court will retire or die, giving Obama a chance to nominate somebody decent in their place. I think there's at least a chance of that.
     
  7. Kevin42

    Kevin42 Guest

    Besides the Equal Protection Clause, there can also be a good arguement made for using the Due Process Clause of the Fourteenth Amendment ["...nor shall any State deprive any person of life, liberty, or property, without due process of law."] Since marriage has long been considered a fundamental right in the United States (Loving v. Virginia), one might argue that homosexuals are being denied liberty because they are unable to marry the person that they choose and love. In Loving, the Supreme Court said, "Marriage is one of the ‘basic civil rights of man', fundamental to our very existence and survival.”

    Since the Supreme Court recognizes the importance of marriage and that it is a basic right, it is possible to argue that the Supreme Court must use strict scrutiny in evaluating laws that prohibit same sex marriage. To meet Constitutionality, these laws must be designed to meet a legitimate state interest. If you can persuasively argue that the state has no legitimate interest in keeping marriage between a man and a woman only (which I think is becoming increasingly possible), then you might have a pretty persuasive case.
     
    #7 Kevin42, Dec 4, 2010
    Last edited by a moderator: Dec 4, 2010
  8. RedState

    Full Member

    Joined:
    Aug 24, 2008
    Messages:
    1,456
    Likes Received:
    0
    Location:
    The Southeastern Conference
    Well, if there was a constitutional argument the 14th amendment would certainly be the most obvious place to start. I've always been torn on this issue. I think civil-unions, domestic partnerships or what ever you want to call them most certainly should be legal because it is directly administered by The State. Should someone in this situation be eligible for spousal benefits, etc? Of course.

    But I've always viewed the ceremony of marriage to be something that is recognized and administered by the church, and if they don't agree with it I don't think the government should force them to do it. At least that has always been my interpretation.
     
  9. midwestblues

    Full Member

    Joined:
    Nov 25, 2010
    Messages:
    427
    Likes Received:
    0
    Location:
    North Dakota
    Marriage is a legal status recognized and administered by the government. If a couple wants a ceremony performed at a church, that's their elective. Plenty of couples have had courthouse weddings with no religion involved.

    You're right; the government shouldn't and will never be able to force churches to perform a ceremony for a couple that defies the church's guidelines. That doesn't matter. No church need be acknowledged in order for a couple to marry.
     
  10. Lady Gaga

    Lady Gaga Guest

    Why should something that a government created, not a religion, be controlled by a religion? That makes no sense. Also, marriage is administered and recognized by the government, not the Church. You don't even need a priest, or any other religious offical to get married.

    You might as well have taxes, a government invention controlled by religion. That's equally logical.

    Oh, that's not logical at all? Exactly. And no, the whole, "Christianity created marriage" is complete bullshit. First of all, multiple cultures (such as Ancient Greece) that existed before Christianity had marriage.

    The first historical account of marriage was in ancient Mesopotamia, which was not a social institution.
     
  11. Kevin42

    Kevin42 Guest

    If the government wanted to get out of marriage altogether and only issue domestic partnerships or civil unions, for both heterosexual and homosexual couples, I would be fine with that action. However, if straight couples get marriage, then I want to be able to get married too...anything less is "seperate but equal". My relationships deserves to be on the exact same level as my straight neighbor's relationship in the government's eyes - anything short of that is unacceptable in America.
     
  12. Emberstone

    Full Member

    Joined:
    May 26, 2008
    Messages:
    6,680
    Likes Received:
    1
    Location:
    Oregon, USA
    That is a non-issue on multiple counts. religion did not create marriage, nor does it govern it. marriage is still a issue of goverment. your marriage is not legal unless you do it through the goverment. the issue of where you get married, and what the ceremony is like is not up to the goverment though, and you can get married in a church if you want, useing the religious ceremony of that church. however, you are not required to get married in a church, because marriage is not at its core religious in any way, people just make the choice to express their devotion through religious ceremony.

    No one has made any effort to force churches to be required by law to marry gay couples. heck, interacial marriage is legal, but churches are not required by law to marry those couples either. It is a moot point because the church is exempt from requirements of anti-discrimination that say a bench judge would be required to follow as a justice of the peace.



    The big problem in the arguement of marriage rights is that religion has been thrown into the mix. marriage did not come from religion, and predates religion as it is practiced. Marriage came from human neccesity. if we can untangle the tendrils of religion from the issue of marriage, then everyone would win. We cant live in a society where religious beliefs of the few have authority over the rights of the many.