Same Sex Marriage – A Question of Constitutionality (1 Viewer)

[Just A Guy]

I posted this on another forum and got less of a response than I was hoping for so I thought I'd try it here.

The common arguments you hear around are ‘homosexuality isn’t natural’, ‘it’s Adam and Eve, not Adam and Steve’, and other such polarized arguments thrown at us by the people around us and most notably the media. All of these, which really shouldn’t have much, if any, effect on the decision of our government regarding same sex marriage.

The thing I would like to ask in this thread is not whether or not same sex marriage is socially acceptable or something along those lines, but is it constitutional for our government to create same sex marriage.

This thread is addressing two things in depth:
1) Same sex marriage and our judicial branch of government.
2) Same sex marriage and our legislative branch of government.

There is also one thing that I would like everyone to remember as they read this post - marriage is a secular state sponsored institution.

Same Sex Marriage and our Judicial Branch

Not allowing same sex marriage is not denying a homosexual person marriage. There is not a single person by law [here in the United States] that can marry any person he wants. Every single person, whether homosexual or heterosexual has exactly the same rights when it comes to marriage. Do you love the person you marry? Do you hate the person? Do you find them attractive? Do you find them repulsive? None of these are things the government considers in civil marriage.

Marriage is not a civil right, it is an institution granted by the state. There is no discrimination or injustice here – everyone has the same rights. For this reason, the courts have absolutely no jurisdiction in the matter currently. As one of the dissenting judges from the Massachusetts same sex marriage case put it when legalizing it, "Today, the court has transformed its role as protector of individual rights into the role of creator of rights, and I respectfully dissent."

It should be completely clear now that the courts have to reason to be sanctioning same sex marriages at the current time because that is something for, as another dissenting judge put it when speaking of the courts, that they have the "authority to recognize rights that are supported by the Constitution and history, but the power to create novel rights is reserved for the people through the democratic and legislative processes." There is no civil rights issue here. And this is the process in which a large portion of the 'Gay Rights Movement' wishes to gain their special right.

The point of all of that – it is not unconstitutional to deny a right that is not embodied in the constitution. There is no right for the courts to be protecting, and it is an abuse of judicial power to legislate from the bench.


Same Sex Marriage and our Legislative Branch

Since the judicial branch has no power over the creation of same sex marriage, who would people logically think have the power? The legislative branch. This, however, is not true as well.

The powers of congress are clearly laid out in the Constitution (see Article I, Sec 8 - http://www.usconstitution.net/const.html#A1Sec8)

If we take the broadest possible interpretation of our constitution, it would involve the following clause:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and *provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To this, we would apply the elastic clause and come out with a phrase that goes like this:

Congress has the power to "make all laws necessary and proper" for "provid[ing] for… the general welfare of the United States."

As of yet, I have not seen a single argument that makes the case that the creation of same sex marriage provides for the general welfare of the United States.

I will end and begin this post with the same phrase I started it with - marriage is a secular state sponsored institution.

Feel free to eat my post alive.

 

[Kandahar]

Same Sex Marriage and our Judicial Branch

Not allowing same sex marriage is not denying a homosexual person marriage. There is not a single person by law [here in the United States] that can marry any person he wants. Every single person, whether homosexual or heterosexual has exactly the same rights when it comes to marriage.

It is true that people regardless of sexual orientation have the same rights when it comes to marriage, but it is NOT true that every single person has the same rights when it comes to marriage.

Women have the right to marry men. Men do not have that right. Men have the right to marry women. Women do not have that right. Seems like a pretty blatant violation of the 14th amendment to me.

Marriage is not a civil right, it is an institution granted by the state.

What's the distinction?

There is no discrimination or injustice here – everyone has the same rights. For this reason, the courts have absolutely no jurisdiction in the matter currently.

But as I mentioned, it's state-sanctioned gender discrimination if nothing else. Therefore the courts DO have a jurisdiction in the matter.

As one of the dissenting judges from the Massachusetts same sex marriage case put it when legalizing it, "Today, the court has transformed its role as protector of individual rights into the role of creator of rights, and I respectfully dissent."

I consider myself a strict constructionist, and am generally in favor of the courts striking down acts by the legislature and executive. However I must disagree with this justice who attempts to link strict constructionism with opposition to judicial intervention in the gay marriage debate, since the 14th amendment is being violated.

The judiciary invents a lot of "rights," and grants the legislature a lot of "powers" that it should not have. This is not one of those cases.

Same Sex Marriage and our Legislative Branch

Since the judicial branch has no power over the creation of same sex marriage, who would people logically think have the power? The legislative branch. This, however, is not true as well.

The powers of congress are clearly laid out in the Constitution (see Article I, Sec 8 - http://www.usconstitution.net/const.html#A1Sec8)

If we take the broadest possible interpretation of our constitution, it would involve the following clause:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and *provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To this, we would apply the elastic clause and come out with a phrase that goes like this:

Congress has the power to "make all laws necessary and proper" for "provid[ing] for… the general welfare of the United States."

As of yet, I have not seen a single argument that makes the case that the creation of same sex marriage provides for the general welfare of the United States.

This overlooks the various amendments that have been adopted since Article I, Section 8 that somewhat broaden the powers of Congress. I give you Amendment 14, Section 5:

"Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

 

[Just A Guy]

What's the distinction?

Maybe this doesn't seem like a big deal at face value, but let’s start demanding for a second that everyone must have the right to be involved in every institution. For this example, I'll use the Congress of the United States. Congress, like marriage, is an institution, an 'exclusionary institution' at that. Are you saying it is a civil rights issue to say let me be a representative from, let's say Nebraska? (Note: I’m not from Nebraska) I mean, I've got tons of opinions on legislative matters and could clearly express them with probably millions of other Americans. For that matter, let’s just knock out elections all together because since it's a civil right to be a member of an institution, it is a civil right for me to be a member of Congress. Would this be inefficient to have a million+ person Congress? Most likely, but if being in the institution of marriage is a civil right, so is this.

It is true that people regardless of sexual orientation have the same rights when it comes to marriage, but it is NOT true that every single person has the same rights when it comes to marriage.

Women have the right to marry men. Men do not have that right. Men have the right to marry women. Women do not have that right. Seems like a pretty blatant violation of the 14th amendment to me.

But as I mentioned, it's state-sanctioned gender discrimination if nothing else. Therefore the courts DO have a jurisdiction in the matter.

I don’t see any gender discrimination. Perhaps if it was just women cannot marry women but men can marry men or vise versa, but not allowing same sex marriages is equally applying to both men and women.

From this the obvious response is going to be relating this to the ban on interracial marriage (blacks cannot marry whites just as whites cannot marry blacks), but I must point out that the difference between the two must be pointed out. I must point out that I do not see how banning same sex marriage is in anyway promoting the supremacy of men over women or vise versa in the same way not allowing blacks to marry whites was promoting the supremacy of whites over blacks.

I consider myself a strict constructionist, and am generally in favor of the courts striking down acts by the legislature and executive. However I must disagree with this justice who attempts to link strict constructionism with opposition to judicial intervention in the gay marriage debate, since the 14th amendment is being violated.

The judiciary invents a lot of "rights," and grants the legislature a lot of "powers" that it should not have. This is not one of those cases.

If my memory serves me correctly, this was referring to one of the cases where same sex marriage was not being created by the legislature, but the judiciary branch was the one who was giving the same sex couples the ability to marry.

This overlooks the various amendments that have been adopted since Article I, Section 8 that somewhat broaden the powers of Congress. I give you Amendment 14, Section 5:

"Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

I personally do not see how gender discrimination is present and because of that do not see how it this can relate to the fourteenth amendment in that way (the reason being stated a bit earlier in this post).

 

[goligoth]

I really don't see the problem. Just let people get married to whoever they want. Yeah it's gross but since when do I or any of you have the authority to say that people can't do what they want when it is obviously not going to hurt anyone?

 

[Just A Guy]

I really don't see the problem. Just let people get married to whoever they want. Yeah it's gross but since when do I or any of you have the authority to say that people can't do what they want when it is obviously not going to hurt anyone?

This has nothing to do with is same sex marriage socially acceptable or anything along those lines. The question isn't 'since when do I have the power to say that people can't do what they want when it is obviously not going to hurt anyone?', it is 'Since when does Congress and the judicial branches of the government have the power to abuse its' power'.

I must disagree with you, creating same sex marriage through this process is hurting someone. It is hurting everyone under its' jurisdiction. Allowing the federal government to use powers that it is not even granted under the loosest interpretation of our laws is clearly hurts the people the government is responsible for.

My opinion may be I think same sex marriage is wrong, yours may be you think it is right, but when push comes to shove it should be the laws that make the decision, not our opinions.

 

[jallman]

Maybe this doesn't seem like a big deal at face value, but let’s start demanding for a second that everyone must have the right to be involved in every institution.For this example, I'll use the Congress of the United States. Congress, like marriage, is an institution, an 'exclusionary institution' at that. Are you saying it is a civil rights issue to say let me be a representative from, let's say Nebraska? (Note: I’m not from Nebraska) I mean, I've got tons of opinions on legislative matters and could clearly express them with probably millions of other Americans. For that matter, let’s just knock out elections all together because since it's a civil right to be a member of an institution, it is a civil right for me to be a member of Congress. Would this be inefficient to have a million+ person Congress? Most likely, but if being in the institution of marriage is a civil right, so is this.

The tactic here is to create an absurd hypothetical and use it as basis for an argument. The argument is irrelevant and misleading to start with. You are asserting that membership in congress is exclusive based on what? Vote of the people? Thats a requisite that does not relate to any protected status. Anyone may run for office, and if voted in by his peers, may take part in the activities of congress. It is your civil right to attempt to obtain a vote...it is not your civil right to bypass the vote and demand admittance into congress. What point were you making here?

I don’t see any gender discrimination. Perhaps if it was just women cannot marry women but men can marry men or vise versa, but not allowing same sex marriages is equally applying to both men and women.

I agree, it unfairly and unconstitutionally applies to both men and women who wish to marry their loved one.

From this the obvious response is going to be relating this to the ban on interracial marriage (blacks cannot marry whites just as whites cannot marry blacks), but I must point out that the difference between the two must be pointed out. I must point out that I do not see how banning same sex marriage is in anyway promoting the supremacy of men over women or vise versa in the same way not allowing blacks to marry whites was promoting the supremacy of whites over blacks.

It most certainly does relate. Heterosexuals are attempting to bar civil protections from homosexuals. Your very argument is attempting to redefine the judicial role just so you can keep the equal application of an institution from happening. Banning same sex marriage is defining the right to personal choice as being applicable only as long as it fits a certain mold. Bottom line is this: our constitutional philosophy is built on the assumption that it is your right to express your freedoms and cannot be restricted until those expressions harm or infringe upon the freedoms of others. Same sex marriage does not, in any way infringe upon anyone elses rights. It may offend sensibilities; it may be seen as distasteful; but it in no way directly harms or infringes on the rights of those who wish not to participate.

If my memory serves me correctly, this was referring to one of the cases where same sex marriage was not being created by the legislature, but the judiciary branch was the one who was giving the same sex couples the ability to marry.

And it is well within the powers of the judiciary to make rulings concerning the equal applications of institutions sanctioned by the state. Moral disapproval of a portion of the population is not a basis for permitting restrictive legislation against part of our society. The judiciary branch was giving nothing, they were merely preventing an unfair assertion of power that was trumping the federal constitution.

I personally do not see how gender discrimination is present and because of that do not see how it this can relate to the fourteenth amendment in that way (the reason being stated a bit earlier in this post).

It is discrimination against a sexual orientation. Notice I said orientation, not practice. A person's sexual orientation, though not the sum of, is core to his or her identity. To restrict respectful and lawful expression of that identity through legislation is a direct violation of the 14th amendment. Its really that simple.

 

[Billo_Really]

Who marry's who is nobody's god-damn business except the two people getting marred!

 

[Just A Guy]

The tactic here is to create an absurd hypothetical and use it as basis for an argument. The argument is irrelevant and misleading to start with. You are asserting that membership in congress is exclusive based on what? Vote of the people? Thats a requisite that does not relate to any protected status. Anyone may run for office, and if voted in by his peers, may take part in the activities of congress. It is your civil right to attempt to obtain a vote...it is not your civil right to bypass the vote and demand admittance into congress. What point were you making here?

The point is the difference between a civil right and an institution. You have the right to not be discriminated against. You do not have the right to be a member of an institution in which you bypass the requirements – for congress it is voting, for marriage it is gender (along with a couple others).

Any argument saying that same sex marriage is not like this is just as ‘absurd’ and ‘irrelevant and misleading’.

I agree, it unfairly and unconstitutionally applies to both men and women who wish to marry their loved one.[/qupte]
You have the right not to be discriminated against when entering civil marriage; you do not have the right to marry your ‘loved one’. If your loved one happens to meet the requirements for marriage, so be it, but that is not the reason why the government is allowing you to enter its’ civil institution.

It most certainly does relate. Heterosexuals are attempting to bar civil protections from homosexuals. Your very argument is attempting to redefine the judicial role just so you can keep the equal application of an institution from happening.

List one single right that a heterosexual has that a homosexual does not. Keep in mind, marrying your ‘loved one’ is not a right.

Banning same sex marriage is defining the right to personal choice as being applicable only as long as it fits a certain mold.

The federal government banning same sex marriage is as unconstitutional as creating it. The federal government does not have the power to touch it whatsoever.

Bottom line is this: our constitutional philosophy is built on the assumption that it is your right to express your freedoms and cannot be restricted until those expressions harm or infringe upon the freedoms of others. Same sex marriage does not, in any way infringe upon anyone elses rights. It may offend sensibilities; it may be seen as distasteful; but it in no way directly harms or infringes on the rights of those who wish not to participate.

The bottom line is that the legislative branch of the federal government has the power to "make all laws necessary and proper" for "provid[ing] for… the general welfare of the United States." Creating same sex marriage is not providing for the general welfare of the United States and for this reason they should have no power in it. Feel free to express your freedom, but the federal government creating an institution for it is not within its’ power.

And it is well within the powers of the judiciary to make rulings concerning the equal applications of institutions sanctioned by the state.

However, this does not apply to same sex marriage.

Moral disapproval of a portion of the population is not a basis for permitting restrictive legislation against part of our society. The judiciary branch was giving nothing, they were merely preventing an unfair assertion of power that was trumping the federal constitution.

Moral disapproval should have no weight in this matter. Since there is no right a homosexual has that a heterosexual has and vise versa in the institution of marriage there is no inequality and because of this the courts hold no power in this matter.

It is discrimination against a sexual orientation. Notice I said orientation, not practice. A person's sexual orientation, though not the sum of, is core to his or her identity. To restrict respectful and lawful expression of that identity through legislation is a direct violation of the 14th amendment. Its really that simple.

Once again, list any right a homosexual has that a heterosexual does not. I will also reiterate that the ‘right to marry your loved one’ is not a right.

Who marry's who is nobody's god-damn business except the two people getting marred!

That holds true if we are talking about marriage outside of a civil institution.

 

[jallman]

The point is the difference between a civil right and an institution. You have the right to not be discriminated against. You do not have the right to be a member of an institution in which you bypass the requirements – for congress it is voting, for marriage it is gender (along with a couple others).

And at one time for marriage is used to be congruency of race. We changed that. Denial of the institution of marriage to a homosexual couple is discrimination. Period.

Any argument saying that same sex marriage is not like this is just as ‘absurd’ and ‘irrelevant and misleading’.

Same sex marriage is not anything like congress. Marriage is a private relationship between the two people involved that has the side effect of granting certain state endorsed benefits. There is nothing misleading or irrelevant or absurd about this...now compared to your hypothetical where a right to enter an organization by circumventing its most basic entrance requirement...need I say more.

You have the right not to be discriminated against when entering civil marriage; you do not have the right to marry your ‘loved one’. If your loved one happens to meet the requirements for marriage, so be it, but that is not the reason why the government is allowing you to enter its’ civil institution.

I have never heard a more unsound argument in this debate. Marrying your loved one is most certainly a right. It may not be an enumerated right, but it most certainly is an inherent right when you examine the marriage arrangement. As it stands now, there is a portion of the population which is alienated from a state endorsed institution because the guidelines are pitched in the favor of their exclusion. This is wrong. I dont care how you abuse the literal interpretation of the rights afforded citizens, there is one enumeration of rights that presupposes equality: the right to life, liberty, and the pursuit of happiness.

List one single right that a heterosexual has that a homosexual does not. Keep in mind, marrying your ‘loved one’ is not a right.

The right to pursue their happiness in the marriage contract. Again, marrying the person of your choice is an inherent right. The only reason it needs to be enumerated specifically is because there is a movement to deny that right.

The federal government banning same sex marriage is as unconstitutional as creating it. The federal government does not have the power to touch it whatsoever.

Wrong...the institution of marriage is maintained and controlled by the government. There are benefits and penalties which the government enforces. Therefore, the government is responsible for the equal application of this institution to all its citizens.

The bottom line is that the legislative branch of the federal government has the power to "make all laws necessary and proper" for "provid[ing] for… the general welfare of the United States." Creating same sex marriage is not providing for the general welfare of the United States and for this reason they should have no power in it. Feel free to express your freedom, but the federal government creating an institution for it is not within its’ power.

The institution is already created. You are a little late on that front. And creating laws to protect citizens is well within the circle of "making all laws necessary and proper for providing for the general welfare of the United States." Inclusive tolerance and peaceful exercising of our liberties is part of our general social well being. It is part of being a true and patriotic American.

Originally Posted by jallman
And it is well within the powers of the judiciary to make rulings concerning the equal applications of institutions sanctioned by the state.

However, this does not apply to same sex marriage.

How so? If the institution of marriage is a state endorsed and defined and protected arrangement, then it is well within the rights of the judiciary to ensure the equal application of that arrangement. Inherent in this application is to ensure that personal choice of every citizen is given the same deference when forming the bond. It is wholly unfair to say to the homosexual that he or she cannot take the partner of his or her choosing because their integral make-up doesnt allow for choosing a partner approved of by the others. Meanwhile, you allow heterosexuals to decide, based on their comforts and orientation, who is an acceptable partner. Sorry, but that doesnt hold up against the equality clauses in the constitution.

Moral disapproval should have no weight in this matter. Since there is no right a homosexual has that a heterosexual has and vise versa in the institution of marriage there is no inequality and because of this the courts hold no power in this matter.

I agree, moral disapproval shouldnt have any weight in this matter. However, it is this moral disapproval that is driving the opposition to equal participation in the benefits of marriage. Deny all you want, but the fact remains, the heterosexual enjoys certain benefits and comforts which are denied to the homosexual. Attempt to redefine all you want, but the courts have paramount roles in ensuring the application of law equally. Period.

Once again, list any right a homosexual has that a heterosexual does not. I will also reiterate that the ‘right to marry your loved one’ is not a right.

Once again, the right to marry the one person of your choosing and enjoy the securities and benefits of a state endorsed arrangement is a right that heterosexuals have that homosexuals dont. I will also reiterate the 'the right to marry your loved one' is a right that falls under your right to pursue happiness.

 

[Just A Guy]

And at one time for marriage is used to be congruency of race. We changed that. Denial of the institution of marriage to a homosexual couple is discrimination. Period.

And I have already covered this:

“…From this the obvious response is going to be relating this to the ban on interracial marriage (blacks cannot marry whites just as whites cannot marry blacks), but I must point out that the difference between the two must be pointed out. I must point out that I do not see how banning same sex marriage is in anyway promoting the supremacy of men over women or vise versa in the same way not allowing blacks to marry whites was promoting the supremacy of whites over blacks. “

Same sex marriage is not anything like congress. Marriage is a private relationship between the two people involved that has the side effect of granting certain state endorsed benefits. There is nothing misleading or irrelevant or absurd about this...now compared to your hypothetical where a right to enter an organization by circumventing its most basic entrance requirement...need I say more.

Both are civil institutions that have requirements. If you agree that it is wrong to attempt to ‘circumvent its most basic entrance requirement’, then I do not see why you are against same sex marriage. Please do elaborate.

I have never heard a more unsound argument in this debate. Marrying your loved one is most certainly a right. It may not be an enumerated right, but it most certainly is an inherent right when you examine the marriage arrangement. As it stands now, there is a portion of the population which is alienated from a state endorsed institution because the guidelines are pitched in the favor of their exclusion. This is wrong. I dont care how you abuse the literal interpretation of the rights afforded citizens, there is one enumeration of rights that presupposes equality: the right to life, liberty, and the pursuit of happiness.

Where exactly does ‘the pursuit of happiness’ appear in the constitution (as in not the Declaration of Independence)? Marrying your loved one is not a right.

The right to pursue their happiness in the marriage contract. Again, marrying the person of your choice is an inherent right. The only reason it needs to be enumerated specifically is because there is a movement to deny that right.

I believe you are looking at the wrong document. We are speaking of the United States Constitution which does not mention any form of the word ‘happy’.

Wrong...the institution of marriage is maintained and controlled by the government. There are benefits and penalties which the government enforces. Therefore, the government is responsible for the equal application of this institution to all its citizens.

And you have yet to list a single right a homosexual person has that a heterosexual does not.

The institution is already created. You are a little late on that front. And creating laws to protect citizens is well within the circle of "making all laws necessary and proper for providing for the general welfare of the United States." Inclusive tolerance and peaceful exercising of our liberties is part of our general social well being. It is part of being a true and patriotic American.

Fortunately for my argument, there is already complete ‘inclusive tolerance and peaceful exercising of liberties’ in marriage. There is not a single right a heterosexual has that a homosexual does not and vise versa.

How so? If the institution of marriage is a state endorsed and defined and protected arrangement, then it is well within the rights of the judiciary to ensure the equal application of that arrangement. Inherent in this application is to ensure that personal choice of every citizen is given the same deference when forming the bond. It is wholly unfair to say to the homosexual that he or she cannot take the partner of his or her choosing because their integral make-up doesnt allow for choosing a partner approved of by the others. Meanwhile, you allow heterosexuals to decide, based on their comforts and orientation, who is an acceptable partner. Sorry, but that doesnt hold up against the equality clauses in the constitution.

It does not apply to marriage because there is already complete equality.

I agree, moral disapproval shouldnt have any weight in this matter. However, it is this moral disapproval that is driving the opposition to equal participation in the benefits of marriage. Deny all you want, but the fact remains, the heterosexual enjoys certain benefits and comforts which are denied to the homosexual. Attempt to redefine all you want, but the courts have paramount roles in ensuring the application of law equally. Period.

A fictitious fact if so. There is complete equality. A homosexual has the right to do anything a heterosexual can and vise versa.

Once again, the right to marry the one person of your choosing and enjoy the securities and benefits of a state endorsed arrangement is a right that heterosexuals have that homosexuals dont. I will also reiterate the 'the right to marry your loved one' is a right that falls under your right to pursue happiness.

Homosexuals have the exact same rights as heterosexuals. I will also reiterate that you are looking at the wrong document.

 

[Bustabush]

I love this debate no rebuttle?

 

[jallman]

And I have already covered this:

“…From this the obvious response is going to be relating this to the ban on interracial marriage (blacks cannot marry whites just as whites cannot marry blacks), but I must point out that the difference between the two must be pointed out. I must point out that I do not see how banning same sex marriage is in anyway promoting the supremacy of men over women or vise versa in the same way not allowing blacks to marry whites was promoting the supremacy of whites over blacks. “

Trivializing the comparison is not covering it. In barring interracial marriage, there is no inherent empowering of one race over another...as far as marriage goes. Barring interracial marriage only restricts the rights of the two differeing raced individuals to take part in the institution. Much the same way barring two homosexuals from marrying restricts, unfairly and unconstitutionally, their right to personal choice.

Both are civil institutions that have requirements. If you agree that it is wrong to attempt to ‘circumvent its most basic entrance requirement’, then I do not see why you are against same sex marriage. Please do elaborate.

This comparison you keep drawing from is silly, at best. There is nothing barring a citizen from taking part in congressional activities based on their integral being. Anyone of any race with American citizenship (which can be obtained by anyone of any race) and of any sexual orientation, religious creed, or political philosophy may participate in congressional activities by getting a vote (which is in itself a congressional activity). Barring a person from the institution of marriage by forcing a choice of partner or a gender for that partner which conflicts with his or her orientation is a direct attack on that individuals rights.

Where exactly does ‘the pursuit of happiness’ appear in the constitution (as in not the Declaration of Independence)? Marrying your loved one is not a right.

I didnt not intend to say that it was in the constitution...but the declaration of independence is a solid foundation of our constitutional philosophy. The basis of our civil liberties comes from the ideal that you cannot inflict your choices upon another. And I am not sure how many ways to explain this to you...you can repeat your "point" about marrying your loved one not being a right until you are blue in the face, but it is a right. It may not be an enumerated right, but it is an inherited right of heterosexuals as it stands now. You are using literal interpretation to the point of absurdity.

I believe you are looking at the wrong document. We are speaking of the United States Constitution which does not mention any form of the word ‘happy’.

I believe I am looking at the philosophies and intentions of the whole system.

And you have yet to list a single right a homosexual person has that a heterosexual does not.

Thats because homosexuals dont have specific rights granted to them that heterosexuals dont have...its the other way around.

Fortunately for my argument, there is already complete ‘inclusive tolerance and peaceful exercising of liberties’ in marriage. There is not a single right a heterosexual has that a homosexual does not and vise versa.

There is the right to marry the person of your choice.

It does not apply to marriage because there is already complete equality.

Except for the right to marry the person of your choice.

A fictitious fact if so. There is complete equality. A homosexual has the right to do anything a heterosexual can and vise versa.

Except enjoy the benefits afforded by the institution of marriage and to enjoy those benefits with the person of the homosexuals choosing.

Homosexuals have the exact same rights as heterosexuals. I will also reiterate that you are looking at the wrong document.

Homosexuals do not have the right to enjoy the institution of marriage as heterosexuals do. I will also reiterate that my interest is in the total philosophy behind our legal system, of which the Declaration of Independence is a an integral part.

 

[Just A Guy]

Trivializing the comparison is not covering it. In barring interracial marriage, there is no inherent empowering of one race over another...as far as marriage goes. Barring interracial marriage only restricts the rights of the two differeing raced individuals to take part in the institution. Much the same way barring two homosexuals from marrying restricts, unfairly and unconstitutionally, their right to personal choice.

Did a black person have exactly the same options (right wise) as a white person? No. Does a homosexual have exactly the same option (right wise) as a heterosexual? Yes. There is no comparison between these two. Not allowing interracial marriage is unconstitutional. Not creating same sex marriage on the other hand is not. Two people with the exact same rights are equal.

This comparison you keep drawing from is silly, at best. There is nothing barring a citizen from taking part in congressional activities based on their integral being. Anyone of any race with American citizenship (which can be obtained by anyone of any race) and of any sexual orientation, religious creed, or political philosophy may participate in congressional activities by getting a vote (which is in itself a congressional activity). Barring a person from the institution of marriage by forcing a choice of partner or a gender for that partner which conflicts with his or her orientation is a direct attack on that individuals rights.

I’ve posted it multiple times and you miss the point every single time. Congress and marriage are both exclusionary institutions. Both have requirements and restrictions which regulate it. Both offer complete equal opportunity to all Americans. Any person of any ‘sexual orientation, religious creed, or political philosophy may participate’ in marriage by marrying someone of the opposite gender (while meeting the other requirements not important to this debate) just like anyone attempting to enter congress can meet the requirements and restrictions such as being voted into the limited seats while meeting the age requirements. Their requirements are completely different, but they are clearly two equal opportunity for all people exclusionary institutions that have requirements and restrictions to regulate them.

I didnt not intend to say that it was in the constitution...but the declaration of independence is a solid foundation of our constitutional philosophy. The basis of our civil liberties comes from the ideal that you cannot inflict your choices upon another.

…

I believe I am looking at the philosophies and intentions of the whole system.

…

I will also reiterate that my interest is in the total philosophy behind our legal system, of which the Declaration of Independence is a an integral part.

Please point out the law of the United States that supports your point.

And I am not sure how many ways to explain this to you...you can repeat your "point" about marrying your loved one not being a right until you are blue in the face, but it is a right. It may not be an enumerated right, but it is an inherited right of heterosexuals as it stands now. You are using literal interpretation to the point of absurdity.

Heterosexuals do not have the right to marry who they love. They have the right to marry anyone of the opposite gender. Homosexuals have the same right. You keep pointing out how society recognizes marriage, I point out how the law recognizes marriage.

There is the right to marry the person of your choice.

Except for the right to marry the person of your choice.

Except enjoy the benefits afforded by the institution of marriage and to enjoy those benefits with the person of the homosexuals choosing.

A person of your choice that meets the requirements of the civil institution of marriage.

Homosexuals do not have the right to enjoy the institution of marriage as heterosexuals do.

From the view rights they do.

 

[jallman]

Did a black person have exactly the same options (right wise) as a white person? No. Does a homosexual have exactly the same option (right wise) as a heterosexual? Yes. There is no comparison between these two. Not allowing interracial marriage is unconstitutional. Not creating same sex marriage on the other hand is not. Two people with the exact same rights are equal.

So are we arguing the civil rights of blacks versus whites or are we arguing the equality of marriage as it related to interracial couples? Not allowing an interracial couple to marry is unconstitutional, regardless of the constitutional treatment of the two races apart from one another. Those two issues are mutually exclusive. The comparison is quite valid. If it was constitutional to change the institution to eliminate racial congruency as a compatibility requirement, there is no reason not to suppose the same is true of the gender requirement.

I’ve posted it multiple times and you miss the point every single time. Congress and marriage are both exclusionary institutions. Both have requirements and restrictions which regulate it. Both offer complete equal opportunity to all Americans. Any person of any ‘sexual orientation, religious creed, or political philosophy may participate’ in marriage by marrying someone of the opposite gender (while meeting the other requirements not important to this debate) just like anyone attempting to enter congress can meet the requirements and restrictions such as being voted into the limited seats while meeting the age requirements. Their requirements are completely different, but they are clearly two equal opportunity for all people exclusionary institutions that have requirements and restrictions to regulate them.

I get your point. You are creating an absurd hypothetical and forcing a relationship between the two issues. Congress is only exclusive by the number of seats available. Marriage licenses are not restricted by such a limit. The requirements of marriage are unfair as they stand now. A portion of the population is alienated from the institution based on the moral application of another portion.

Please point out the law of the United States that supports your point.

Nice red herring, but I am not taking the bait. I specifically stated that the encompassing philosophy of our legal system is given its foundation in that declaration. I can point you to the federalist papers and the philosophers that paved the way if you wish, but the laws themselves are in question here. Calling for laws that are in question to be the source is not a valid request.

Heterosexuals do not have the right to marry who they love. They have the right to marry anyone of the opposite gender. Homosexuals have the same right. You keep pointing out how society recognizes marriage, I point out how the law recognizes marriage.

And I point out that the application of that law is in question. Heterosexuals have the inherent right to marry who they love because there are no restrictions upon them that exclude that possibility. For homosexuals, the very requirements exclude them from even consideration for participation. It is an unfair and unconstitutional application of the institution.

A person of your choice that meets the requirements of the civil institution of marriage.

The requirements themselves are unfair and unjust with regards to homosexuals. Keep repeating your mantra over and over--it still doesnt make it true. Basically, you are hinging your whole argument on this: The institution and its requirements work for me, so it is constitutional. It may work and seem constitutional for you, but it certainly does not for a portion of the american citizenry.

Homosexuals do not have the right to enjoy the institution of marriage as heterosexuals do.

From the view rights they do.

No, they dont. You as a heterosexual inherit certain rights by tradition. Homosexuals do not have the same rights. The right to marry is no more enumerated for you that it is for a homosexual. Homosexuals have the right to the same enjoyments that heterosexuals do...as it currently stands, some of those rights are being denied.

 

[Just A Guy]

So are we arguing the civil rights of blacks versus whites or are we arguing the equality of marriage as it related to interracial couples? Not allowing an interracial couple to marry is unconstitutional, regardless of the constitutional treatment of the two races apart from one another.

I believe the courts already established that and neither one of us are claiming that it should be challenged.

Those two issues are mutually exclusive. The comparison is quite valid. If it was constitutional to change the institution to eliminate racial congruency as a compatibility requirement, there is no reason not to suppose the same is true of the gender requirement.

I beg to differ. To use your phrasing, you are ‘forcing a relationship between the two issues.’ When examining the circumstances of the two it becomes quite clear. For blacks and whites allowing interracial marriage was because they did not have the same options and it was promoting the supremacy of whites over blacks.

However, when applying this to same sex marriage this is not present. From the standpoint of rights, unlike blacks and whites, homosexuals and heterosexuals have the same options from the perspective or rights. Unless you can show me otherwise that heterosexuals have a right to marry who they love then you cannot tell me that homosexuals are being denied a right because they are missing a right that heterosexuals have not been given. There is complete legal equality.

The two are not at all similar in the way you are trying to force upon them.

I get your point. You are creating an absurd hypothetical and forcing a relationship between the two issues. Congress is only exclusive by the number of seats available. Marriage licenses are not restricted by such a limit. The requirements of marriage are unfair as they stand now. A portion of the population is alienated from the institution based on the moral application of another portion.

I really don’t think you do. You are turning a very simple point into absurd complication. Is there a difference between an institution and a civil right? If the answer is yes, the analogy has completed its’ purpose. If the answer is no, I will have to explain it again. There is no hidden meaning, there is nothing here to inspire an epiphany, it is a very simple point. Is it really that hard to slow down and just look at the actual point instead of dancing around it.

Nice red herring, but I am not taking the bait. I specifically stated that the encompassing philosophy of our legal system is given its foundation in that declaration. I can point you to the federalist papers and the philosophers that paved the way if you wish, but the laws themselves are in question here. Calling for laws that are in question to be the source is not a valid request.

You have claimed that heterosexuals have a right that homosexuals do not have. You can claim that this is embodies in our political philosophy, but there has never been any case to my knowledge solidifying this in our legal system. Unless you can first show me the exact law that gives the heterosexuals the right the homosexuals do not have there is no validity in your claiming of a ‘red herring’.

No, they dont. You as a heterosexual inherit certain rights by tradition. Homosexuals do not have the same rights. The right to marry is no more enumerated for you that it is for a homosexual. Homosexuals have the right to the same enjoyments that heterosexuals do...as it currently stands, some of those rights are being denied

…

The requirements themselves are unfair and unjust with regards to homosexuals.

…

And I point out that the application of that law is in question. Heterosexuals have the inherent right to marry who they love because there are no restrictions upon them that exclude that possibility. For homosexuals, the very requirements exclude them from even consideration for participation. It is an unfair and unconstitutional application of the institution.

It is not a right, it is not something taken into consideration by the government when being married. Can a heterosexual marry someone of the opposite gender? Yes. Can a homosexual? Yes. Can a heterosexual marry someone of the same gender? No. Can a homosexual? No. Unless you can show me where the right to marry who you love is solidified in our legal system I will await any validity to your claims.

Keep repeating your mantra over and over--it still doesnt make it true.

However, if it is already true, every time it is repeated it remains true as the case is here.

Basically, you are hinging your whole argument on this: The institution and its requirements work for me, so it is constitutional. It may work and seem constitutional for you, but it certainly does not for a portion of the american citizenry.

This is more accurately aimed at you than myself.


Forgive my late response.
Forgive my late response.

 

[jallman]

I believe the courts already established that and neither one of us are claiming that it should be challenged.
I beg to differ. To use your phrasing, you are ‘forcing a relationship between the two issues.’ When examining the circumstances of the two it becomes quite clear. For blacks and whites allowing interracial marriage was because they did not have the same options and it was promoting the supremacy of whites over blacks.

No, the supremacy of whites over blacks was a separate issue entirely. Laws restricting interracial marriage simply restrict the two persons involved...and unconstitutionally I might add. Limitation of congress by the number of seats does not bar anyone from attempting to gain entrance. You are still forcing a relationship that does not exist.

However, when applying this to same sex marriage this is not present. From the standpoint of rights, unlike blacks and whites, homosexuals and heterosexuals have the same options from the perspective or rights. Unless you can show me otherwise that heterosexuals have a right to marry who they love then you cannot tell me that homosexuals are being denied a right because they are missing a right that heterosexuals have not been given. There is complete legal equality.

So are you denying that heterosexuals inherit the right to marry whom they love? Are you denying that heterosexuals have the ability and the encouragement to marry whom they love and are attracted to? As I said before, homosexuals are missing a right to marry whom they love. There is no way to argue this fact. Its absurd and silly to even try.

The two are not at all similar in the way you are trying to force upon them.

No, they contrast greatly in the way they are treated.

I really don’t think you do. You are turning a very simple point into absurd complication. Is there a difference between an institution and a civil right? If the answer is yes, the analogy has completed its’ purpose. If the answer is no, I will have to explain it again. There is no hidden meaning, there is nothing here to inspire an epiphany, it is a very simple point. Is it really that hard to slow down and just look at the actual point instead of dancing around it.

I am taking the point head on. I feel it is you who are obfuscating the issue with your absurdly literal interpretations and wildly irrelevant hypothetical concerning congress. The point is this: the current requirements for marriage alienate a population of the citenzhip of the United States. There is no way to deny that this population is disadvantaged when taking into account the benefits and securities offered by an institution that is government sanctioned. In so much that this is a government institution, it is the governments responsibility, whether through judicial enforcement or active legislation, to ensure that all citizens have an equal application of these benefits AND to do so without restricting personal choice.

You have claimed that heterosexuals have a right that homosexuals do not have. You can claim that this is embodies in our political philosophy, but there has never been any case to my knowledge solidifying this in our legal system. Unless you can first show me the exact law that gives the heterosexuals the right the homosexuals do not have there is no validity in your claiming of a ‘red herring’.

Do you know the difference between an inherent and an enumerated right? Do you have a concept of the inclusive philosophy found in the preamble, the declaration, and the bill of rights? If you dont, I will be happy to explain them, but here again, I believe you are trying to inflame me with your absurdly literal interpretations and making requests that are not valid. You will not succeed.

It is not a right, it is not something taken into consideration by the government when being married. Can a heterosexual marry someone of the opposite gender? Yes. Can a homosexual? Yes. Can a heterosexual marry someone of the same gender? No. Can a homosexual? No. Unless you can show me where the right to marry who you love is solidified in our legal system I will await any validity to your claims.

It most certainly is an inherent right. What is so difficult to understand about this? It is a right which is a by product of the design of the institution. For heterosexuals, they inherit the right to marry whom they love while homosexuals are unequivocably barred from that same enjoyment. As I said before, your entire basis for your argument is that it already works for you, no need to change it to work for others.

However, if it is already true, every time it is repeated it remains true as the case is here.

Whatever you need to tell yourself, sport. You are wrong because you refuse to look at the bigger picture of our legal philosophy. Literal interpretation to the point of the absurd is your only weapon and it is weak.

This is more accurately aimed at you than myself.

What, huh? Are you for real?

Forgive my late response.
Forgive my late response.

Dont mention it.

 

[Just A Guy]

No, the supremacy of whites over blacks was a separate issue entirely. Laws restricting interracial marriage simply restrict the two persons involved...and unconstitutionally I might add. Limitation of congress by the number of seats does not bar anyone from attempting to gain entrance. You are still forcing a relationship that does not exist.

So are you denying that heterosexuals inherit the right to marry whom they love?

That is exactly what I am saying. Nobody has the right to ‘marry whom they love’. Perhaps the person a heterosexual marries is someone they love, but they are able to marry the person in a state sponsored institution not because they love the person, but because that person meets the requirements in the exclusionary institution of marriage.

As I said before, homosexuals are missing a right to marry whom they love. There is no way to argue this fact. Its absurd and silly to even try.

The right you claim they are missing does not exist. No one has it – not a man or a woman, a homosexual or a heterosexual.

I am taking the point head on. I feel it is you who are obfuscating the issue with your absurdly literal interpretations and wildly irrelevant hypothetical concerning congress.

Absurdly literal interpretations? I am saying Congress has the power to "make all laws necessary and proper" for "provid[ing] for… the general welfare of the United States." I frankly cannot seen how this is an ‘absurdly literal interpretation.’

The point is this: the current requirements for marriage alienate a population of the citenzhip of the United States. There is no way to deny that this population is disadvantaged when taking into account the benefits and securities offered by an institution that is government sanctioned.

Perhaps some people are disadvantaged by the institution of marriage, but they all have an equal right to enter marriage without discrimination which is already present.

In so much that this is a government institution, it is the governments responsibility, whether through judicial enforcement or active legislation, to ensure that all citizens have an equal application of these benefits AND to do so without restricting personal choice.

All citizens of the United States have an equal application to the benefits of marriage and every male and every female have an equal option.

Do you know the difference between an inherent and an enumerated right? Do you have a concept of the inclusive philosophy found in the preamble, the declaration, and the bill of rights? If you dont, I will be happy to explain them, but here again, I believe you are trying to inflame me with your absurdly literal interpretations and making requests that are not valid. You will not succeed.

No human has an inherent right to marry whom they love in a state sponsored institution. There is absolutely no natural right to marry whom you love. As for enumerated rights, I am not denying there are unmentioned rights, but marriage is not one of them. With the existence of marriage, everyone is required to be able to enter it equally, which is already there. The right for a heterosexual or a homosexual to marry whom they love is not one of them (I actually support the complete removal marriage as a state institution, but that’s another thread).

It most certainly is an inherent right. What is so difficult to understand about this? It is a right which is a by product of the design of the institution. For heterosexuals, they inherit the right to marry whom they love while homosexuals are unequivocably barred from that same enjoyment. As I said before, your entire basis for your argument is that it already works for you, no need to change it to work for others.

It is not an inherent right. No one can marry whom they love. Heterosexuals do not have an inherent right to marry whom they love, and since they do not have it homosexuals cannot be barred from a nonexistent right.

Whatever you need to tell yourself, sport. You are wrong because you refuse to look at the bigger picture of our legal philosophy. Literal interpretation to the point of the absurd is your only weapon and it is weak.

I see no literal interpretation here. The right to marry in a civil institution is in no way an inherent right. That said, neither is the right to marry whom you love in a civil institution.

 

[Bustabush]

Hey Just a Guy,

(I actually support the complete removal marriage as a state institution, but that’s another thread).

Me too. I don't see a way around this. If we were to allow gay marriage marriage itself will have to be removed as a state institution.

 

[tecoyah]

Hey Just a Guy,



Me too. I don't see a way around this. If we were to allow gay marriage marriage itself will have to be removed as a state institution.

Would this mean Marriage is relegated back to religion? And thus lose recognition within the framework of United States Law? If so......I am all for it.

But think of the opposite scenario. What if we were to remove the religious aspect of marriage completely....and instead rely entirely on the Laws of the Land, what objections would then exist to Gay Marriage?

 

[Columbusite]

Marriage is in fact a right. Just thought I'd put that out there.

Loving v. Virginia

"The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." (italics mine)

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=388&invol=1

 

[Just A Guy]

Marriage is in fact a right. Just thought I'd put that out there.

Loving v. Virginia

"The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." (italics mine)

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=388&invol=1

The question in same sex marriage is do you have the right to marry whom you love, or do you just have the right to marry?

And as for the second thing that just got brought up (marriage as a state sponsored institution being abolished), do you have the right to marry inside a state sponsored institution of marriage, or just to marry?

Would this mean Marriage is relegated back to religion? And thus lose recognition within the framework of United States Law? If so......I am all for it.

It wouldn’t necessarily be a strictly religiously run matter. It would be open to everything.

But think of the opposite scenario. What if we were to remove the religious aspect of marriage completely....and instead rely entirely on the Laws of the Land, what objections would then exist to Gay Marriage?

The argument I stated in the beginning post of this thread deals with this.

 

[mike49]

Just a Guy,

Even in the broadest interpretation of the necessary and proper clause, it would not lead to Gay Marriage.

Gay marriage will not be a "right" handed out by the Federal Judiciary.

It is constitutional. In the sense that it could not be stopped by the Feds. It would take a Constitutional Amendment to prevent it in all the states. It is simply not a federal question.

The only federal issue would be if someone in a Gay marriage state moved to a state that did not recognize it, and that state did not honor the marriage. According to the constitution a state is required to honor these types of things if there is not a law against it. This is the main reason a lot of states had referendums banning gay marriage, in the last election. Any state that has not dealt with this will be looking for possible trouble down the line and having to honor these things. Benefits, etc..

 

[YamiB.]

The question in same sex marriage is do you have the right to marry whom you love, or do you just have the right to marry?

Going on the Loving case I would say love. Since they were being denied the right to marry those they loved. To use the argument from many anti-gay marriage people they had equal rights to marry. They just had to do it with those of the same race.

Edit - I think it should be considered in couples. For example, interracial couples couldn't marry, same-sex couples can't marry currently.

 

[mike49]

Going on the Loving case I would say love. Since they were being denied the right to marry those they loved. To use the argument from many anti-gay marriage people they had equal rights to marry. They just had to do it with those of the same race.

Edit - I think it should be considered in couples. For example, interracial couples couldn't marry, same-sex couples can't marry currently.

If the Supreme Court ever heard the case, the Loving Case would be the arguement for Gay marriage. I agree with you there.

I'm not sure it will work though.

 

[YamiB.]

If the Supreme Court ever heard the case, the Loving Case would be the arguement for Gay marriage. I agree with you there.

I'm not sure it will work though.

I think the odds would tip against because some wouldn't be able to see past a personal disliking of homosexuals.