Why gay marriage bans are unconstitutional

[CriticalThought]

exactly. the problem being that this kind of stuff is bullying and tyrannical.

Whether his argument is credible or not comes down to whether or not same sex marriage is constitutional. Every individual is free to take their grievances to court and force others to recognize their Constitutional rights. Equal protection under the law is a constitutional right.

 

[cpwill]

Whether his argument is credible or not comes down to whether or not same sex marriage is constitutional. Every individual is free to take their grievances to court and force others to recognize their Constitutional rights. Equal protection under the law is a constitutional right.

and if i claimed that the states had a right to criminalize sodomy, and insisted that it didn't matter what you believed or what your liberties were, you were going to act straight whether you liked it or not, your response would be "oh, this is only credible if your claim is constitutionally correct" ?

no, you would correctly consider that bullying and tyranny.

 

[CriticalThought]

actually the people of this country have the right to define marriage however they please.

They can't do it in a way that violates my Constitutional rights.

and nobody is. no one is denied a license because of their gender. people are denied licenses because the relationships they seek to have licensed do not meet the qualifications. for example, perhaps they are also siblings. or perhaps they are already married to someone else. or perhaps they are both from the same gender.

Relationships are not recognized by law, only individuals citizens and their rights are. A marriage is a license between two individual citizens.

yes but it would not restrict you from marriage, and to claim that it would is disingenuous. the law equally forbids straight men from receiving marriage licenses with other men as it does homosexuals. it is applied equally to each; that the people involved may want (or not want) to marry (or not) is their own issue; the state does not take into account whether or not someone is attracted to the person they marry.

Equal discrimination is not equal protection under the law. The law could be written that anyone is free to marry someone of their own race but not of someone of a different race, and that could be applied equally, but it would not be Constitutional because it violates due process and equal protection. States are not allowed to take gender or race into consideration when making laws unless the state can demonstrate a legitimate and rational interest in doing so.

and you are not.

I am. I cannot marry a man based on my gender. The state is not allowed to take my gender into consideration when granting me a license.

 

[cpwill]

They can't do it in a way that violates my Constitutional rights.

and they do not, especially given that the Constitution leaves this sort of thing up to the States

Relationships are not recognized by law, only individuals citizens and their rights are. A marriage is a license between two individual citizens.

correct, and neither of those individuals can have their rights restricted. however, neither are they free to force the state to alter it's definition of their relationship.

Equal discrimination is not equal protection under the law.

actually it is. the law, in it's majestic splendor, equally forbids the rich and the poor from sleeping under bridges.

The law could be written that anyone is free to marry someone of their own race but not of someone of a different race, and that could be applied equally, but it would not be Constitutional because it violates due process and equal protection.

if marriage were still defined as between one man and one woman, then that is correct; because a relationship that would be recognized as qualifying for marriage would be in a state of discrimination.

States are not allowed to take gender or race into consideration when making laws unless the state can demonstrate a legitimate and rational interest in doing so.

the SCOTUS has already declared that the state has a legitimate and rational interest in overriding even religious rights (protected by the first amendment no les) when it comes to defining and legalizing marriage.

I am. I cannot marry a man based on my gender. The state is not allowed to take my gender into consideration when granting me a license.

true, you are not allowed to get the state to recognize you as married to anyone you please. you cannot, for example, insist that the state recognize your marriage to your sibling, or to more than one individual, or to another man. but this is not a discriminatory imposition on your rights, since the same rules apply to you as apply to everybody.

 

[CriticalThought]

and they do not, especially given that the Constitution leaves this sort of thing up to the States

The Constitution does not leave my rights to due process and equal protection to the states.

correct, and neither of those individuals can have their rights restricted. however, neither are they free to force the state to alter it's definition of their relationship.

The state can't give rights to relationships. The states can only recognize individual citizens. Or are you declaring that a marriage is now a corporation and should be treated as an individual?

actually it is. the law, in it's majestic splendor, equally forbids the rich and the poor from sleeping under bridges.

Because it has a legitmate and rational interest in doing so. Hence, such a law does not violate due process.

the SCOTUS has already declared that the state has a legitimate and rational interest in overriding even religious rights (protected by the first amendment no les) when it comes to defining and legalizing marriage.

And that has do to with due process and equal protection how?

true, you are not allowed to get the state to recognize you as married to anyone you please. you cannot, for example, insist that the state recognize your marriage to your sibling, or to more than one individual, or to another man. but this is not a discriminatory imposition on your rights, since the same rules apply to you as apply to everybody.

No, the reason I can't marry a sibling is because of laws prohibiting incest. The reason I can't marry more than one individual is because of a SCOTUS ruling regarding polygamy. The reason I can't marry someone of the same sex is because of same sex marriage bans. They are three separate issues. But what makes the same sex marriage ban different is that it discriminates on the basis of gender, which it cannot do. The state is allowed to limit the number of people in a license, and to limit relatives from being in a license, but it cannot limit the genders of a person in a license.

Come on cpwill, you keep dancing around the issue. Either refute my position or tell me what legitimate interest the state has in taking gender into consideration when it comes to marriage licenses.

 

[joe six-pack]

actually the people of this country have the right to define marriage however they please.

History has shown that States cannot make Laws which violate their State or Federal Constitution. So you are wrong about that, clearly.

Just admit it and move on.

and nobody is. no one is denied a license because of their gender.

They are denied marriage based on their sex.

Sex deals with genitals. Gender deals with a measure of masculinity or femininity. The bans on marriage in question are based on discrimination of couples of the same sex. Whats more, most States which ban marriage based on sex also ban any form of civil union.

That's the issue.

 

[joe six-pack]

The Constitution does not leave my rights to due process and equal protection to the states.

The state can't give rights to relationships. The states can only recognize individual citizens. Or are you declaring that a marriage is now a corporation and should be treated as an individual?

Because it has a legitmate and rational interest in doing so. Hence, such a law does not violate due process.

And that has do to with due process and equal protection how?

No, the reason I can't marry a sibling is because of laws prohibiting incest. The reason I can't marry more than one individual is because of a SCOTUS ruling regarding polygamy. The reason I can't marry someone of the same sex is because of same sex marriage bans. They are three separate issues. But what makes the same sex marriage ban different is that it discriminates on the basis of gender, which it cannot do. The state is allowed to limit the number of people in a license, and to limit relatives from being in a license, but it cannot limit the genders of a person in a license.

Come on cpwill, you keep dancing around the issue. Either refute my position or tell me what legitimate interest the state has in taking gender into consideration when it comes to marriage licenses.

Good post.

By the way Alabama allows marriage between siblings. Distant relatives get married all the time, since in any small community most people have some legal or blood relation. I personally think Polygamy should be legalized, but that's another issue.

There really is no logical reason why the State should care what the sex is of the people who wish to get married. Marriage is a set of public Laws, all of which could apply to people of the same sex equally as people of the opposite sex. Call it what it is: discrimination against hermaphrodites, transsexuals and homosexuals.

Some people are simply "born different." But their personal rights should remain intact.

 

[CriticalThought]

cpwill is either confused or being dishonest. He realizes that states have the right to regulate marriage. He does not realize that they can't regulate marriage in a way that violates federal constitutional rights. They can't limit marriage licenses on the basis of race or sex without a rational and legitimate state interest in doing so. If states try to do so, then they violate people's constitutional rights to due process and equal protection. He keeps trying to spin an argument that individual states have some supreme power to define marriage however they wish even if it does violate due process and equal protection. He has yet to provide any decent rational behind it, only that it is "equal discrimination" but the Supreme Court has made it clear that the law must be blind to race or sex.

 

[cpwill]

History has shown that States cannot make Laws which violate their State or Federal Constitution. So you are wrong about that, clearly.

several states have altered their constitution to read precisely what they intend, and the United States Constitution expressely leaves such matters to the State Governments.

Just admit it and move on.

no. i will not leave representative government for any tyranny, be it ever so politically correct.

They are denied marriage based on their sex.

no, they aren't. they are denied a marriage license based on the relationship with which they applied for one.

 

[cpwill]

cpwill is either confused or being dishonest. He realizes that states have the right to regulate marriage. He does not realize that they can't regulate marriage in a way that violates federal constitutional rights.

if it any attempted to do so (for example, if the states were to say that anyone who was formerly a slave could not be married, or anyone who was hispanic could not recieve a marriage license) then certainly they would be in the wrong. where you fail is that for a State to merely define marriage is not an abuse of anyones' Constitutional rights. the States do have the right to define marriage as they please, they are the ones issuing the licenses, and Congress is not given authorization to interfere with such matters in Article I Section 8. the 10th Amendment clearly holds in this case, as no 14th Amendment violation is occuring.

 

[Henrin]

This is so silly. Marriage is a privilege provided by the state. The truth is there is no constitutional grounds for marriage to even be supported by the government let alone provide gay marriage. Still, the fact remains they provide the privilege, so the question remains, can they restrict it from groups. The very basis of a privilege is restriction and the allowed access of those you wish, so the truth is they can ban them if they wish. This will continue to be the reality of the situation as long as they are allowed to be connected to marriage. When they are no longer connected it will still be a privilege. Marriage will never be a right for anyone.

Edit: Forgot to mention the existence of benefits of a privilege does not change what it is, as I so regularly hear on the topic.

 

[roguenuke]

several states have altered their constitution to read precisely what they intend, and the United States Constitution expressely leaves such matters to the State Governments.

Several states used to have it in their state constitutions to read that only a man and a woman of the same race could get married as well. The Loving vs VA decision rendered these parts of those states' constitutions obsolete and unenforceable, eventhough many states still had these rules in their constitutions for decades after the decision. Alabama's was the last one to be changed in 2003. Which means that the rights expressed in the US Constitution override state constitutions. It only takes one SCOTUS decision for those relevant parts of those states' constitutions to become meaningless.

no. i will not leave representative government for any tyranny, be it ever so politically correct.

Tyranny of the majority is still tyranny as well. Funny how you don't consider this to be true.

Plus, the latest polls show that there is a majority of people who want to give the same exact legal benefits/responsibilities that come with a marriage license to same sex couples. So, therefore, the representative government should represent that fact instead of overreacting and making amendments to their state constitutions which make such a thing harder.

no, they aren't. they are denied a marriage license based on the relationship with which they applied for one.

Yes, they are being denied a marriage license on the basis of the genders of the people applying for the license. A heterosexual woman can marry one of her homosexual or heterosexual male friends, no matter the nature of their relationship. A heterosexual woman cannot marry one of her homosexual or heterosexual female friends, no matter the nature of their relationship. This is why the discrimination is based on gender, not sexuality or the type of relationship.

If people would stop being so sentimental about the word "marriage", and instead view the marriage license as what it really is, a legal contract between two people who wish to make each other legal family, along with establishing the other person as the person who has the final decision in certain legal matters, then there wouldn't be any problems. Maybe the best way to do this would be to just trash the "marriage license" all together, and make everyone, male and male, male and female, or female and female establish their relationships with a different civil document that does not include the word marriage at all. I doubt too many opposite sex couples would be complaining so much about same sex marriage if they didn't get the word marriage in their legal contract either.

 

[digsbe]

Most arguments against gay marriage bans are unconstitutional (gender discrimination, EPC).

 

[roguenuke]

Most arguments against gay marriage bans are unconstitutional (gender discrimination, EPC).

How is gender discrimination an unconstitutional argument? How is Equal Protection an unconstitutional argument?

BMS (Be More Specific).

 

[CriticalThought]

iwhere you fail is that for a State to merely define marriage is not an abuse of anyones' Constitutional rights. the States do have the right to define marriage as they please, they are the ones issuing the licenses, and Congress is not given authorization to interfere with such matters in Article I Section 8. the 10th Amendment clearly holds in this case, as no 14th Amendment violation is occuring.

You are absolutely correct. States can define marriage however they want. There is a limit to that power though. They cannot define marriage in a way that violates any individual's Federal Constitutional rights. When a state defines marriage as strictly between a man and a woman it is a violation of the Constitutional rights of due process and equal protection of gay men an women. They are being being denied the right to marry who they want based on their sex/gender. A gay man cannot marry a man because he is a man. In order for a state to define marriage in that manner it has to have a legitimate reason. Nobody has yet to provide a rational or legitimate reason why marriage should be defined in a way that violates the Constitutional rights of due process and equal protection for gay men and women. The freedom of states to regulate marriage does not grant them the power to regulate marriage in a way that violates Federal Constitutional Rights.

 

[Henrin]

How is it even getting close to violating a right? Marriage is not right, its not discrimating against anyone. Its defining the priveledge under the critita it has defined.

 

[Your Star]

How is it even getting close to violating a right? Marriage is not right, its not discrimating against anyone. Its defining the priveledge under the critita it has defined.

Marriage isn't a right, but having equal protection under the law, and due process are rights, and by denying LGBT Americans the ability to enter the contract of marriage both of those rights are being violated.

 

[Henrin]

I completely and utterly fail to see how it even gets close to breaching equal protection under the law or due process. Are we so plainly saying its not a right but in the same breath saying they have the right to the benefits of the privilege? That is a very odd argument that seems to bypass the importance of the first part.

 

[Zyphlin]

cpwill, the 14th amendment IS invoked because there is gender discrimination.

A man can marry a woman. However a WOMAN can't marry a woman. This is discrimination based on gender as its disallowing the woman to do something a member of the opposite sex can do, specifically marrying a woman.

Rewrite the above to "A white person can marry a black person, however a black person can't marry a black person". Would such a law be allowable under the 14th? Unlikely.

The issue here however is that when it comes to the EPC there are three tiers of severity. Race falls into the top tier called "Strict Scrutiny". This requires that the government must show that the challenged classification serves a compelling state interest AND that it is necessary to serve that interest. Discrimination in marriage clearly fails at this standard.

The lowest teir is known as Minimum scrutiny or "rational basis" scrutiny. In this case the government only needs to show that the challenged classification is rationally related to serving a legitimate state interest. This is extremely broad and it is CURRENTLY the teir where "sexual orientation" is found under, which is why using EPC based on it is questionable at this moment as it'd essentially take judges deeming that it deserves to be higher tier for it to work.

But here's the sticky wicket. GENDER falls between those two as a "Middle-Teir Scrutiny" item. In this case the government must show it serves an important state interest and that it is substantially related to serving that interest.

So because Gender is protected at this middle teir the government would need to show that there is an IMPORTANT state interest in allowing men to marry women but not allowing women to marry women and that denying them that ability is substantially related to serving that interest.

The problem with this is there's been few reason given that CLEARLY can be shown as an *important* state interest and that denying this is substantially related to it. In part because there are already NUMEROUS loopholes to just about every single argument why its of "state interest" already in the law, and if you already have numerous loopholes presented its hard to truly argue that its IMPORTANT that you cut off one particular loophole while dozens of others are there.

Tradition? Marriage has changed routinely over the years, from allowing various races to marry, to changes in the average ages being married, etc.

Sanctity? Hard to argue there's a true sanctity to it as multiple marriages and number of divorses are ever rising

Good Family Environment? There are numberous cases of married individuals providing a poor family environment and numerous studies showing that same sex couples can provide a good family environment.

Promote Procreation? Nope, we allow people that are physically unable to reproduce to get married. We allow people who have no desire to reproduce get married. We even allow people who it would be harmful to the child if they were to reproduce, such as the elderly, get married.

While its not an absolute clear cut case that discrimination of marriage based on Gender wouldn't stand up to the middle teir scrutiny, I think its a strong case that it wouldn't and I've yet to see anyone adequetely show a legitimate reason to think otherwise.

 

[Zyphlin]

How is it even getting close to violating a right? Marriage is not right, its not discrimating against anyone. Its defining the priveledge under the critita it has defined.

It may not be a universal or "natural" right, but it has been deemed a constitutional right under the body that the constitution set up to decide on such things. As far as our government goes, legally speaking, yes marriage is a right.

 

[Zyphlin]

Marriage isn't a right, but having equal protection under the law, and due process are rights, and by denying LGBT Americans the ability to enter the contract of marriage both of those rights are being violated.

I disagree completely.

Its perfectly within the constitutional realm to deny LGBT Americans the right and ability to enter into such contracts. Their group status is currently at the lowest teir of scrutiny and the arguments with regards to marriage and denying them the ability into it I believe fully meet the standards needed for that level. It actually IS perfectly constitutional to discriminate against some people, and our government does it all the time...you just have to reach a certain level of necessity to do so.

However, discrimination against people wishing to enter into same-sex marriage contracts...be they gay OR straight...IS discrimination because that's based on gender, not sexual orientation.

 

[Your Star]

I disagree completely.

Its perfectly within the constitutional realm to deny LGBT Americans the right and ability to enter into such contracts. Their group status is currently at the lowest teir of scrutiny and the arguments with regards to marriage and denying them the ability into it I believe fully meet the standards needed for that level. It actually IS perfectly constitutional to discriminate against some people, and our government does it all the time...you just have to reach a certain level of necessity to do so.

However, discrimination against people wishing to enter into same-sex marriage contracts...be they gay OR straight...IS discrimination because that's based on gender, not sexual orientation.

This is what I was saying. Their rights are being violated based on their gender, not their sexual orientation.

 

[CriticalThought]

I completely and utterly fail to see how it even gets close to breaching equal protection under the law or due process.

Let me put it this way for you....

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Marriage is a law. That is why we have marriage licenses. Marriage consists of privledges and rights and deals with life, liberty, and property. As a law, it must be applied equally. Defining marriage as between a man and woman takes gender/sex into consideration. Under the levels of scrutiny of the equal protection clause, the state cannot take gender into consideration in applying a law unless it has an important state interest that is served by doing so. To date, nobody has established an important state interest that is served by limiting marriage to two people of the opposite sex.

In other words, states cannot define laws in a way that violates an individual's federal constitutional rights to due process and equal protection.

 

[cpwill]

This is so silly. Marriage is a privilege provided by the state

no, it is an institution that is recognized and should be encouraged by the state.

The truth is there is no constitutional grounds for marriage to even be supported by the government let alone provide gay marriage. Still, the fact remains they provide the privilege, so the question remains, can they restrict it from groups. The very basis of a privilege is restriction and the allowed access of those you wish, so the truth is they can ban them if they wish. This will continue to be the reality of the situation as long as they are allowed to be connected to marriage. When they are no longer connected it will still be a privilege. Marriage will never be a right for anyone.

well, having the state issue you a marriage liscence is certainly not a right; and you are correct that he very existence of a definition of any thing implies creating borders around it and excluding that which is outside those borders.

 

[CriticalThought]

well, having the state issue you a marriage liscence is certainly not a right; and you are correct that he very existence of a definition of any thing implies creating borders around it and excluding that which is outside those borders.

You seem to be avoiding us cpwill. Where in the Constitution does it grant states the right to create licenses that are defined in such a way that they violate some people's Constitutional rights to equal protection and due process? I know of nowhere in the Constitution where states are given the power to violate my Constitutional rights by creating laws that discriminate against me based on my gender. The fact that states can do it does not make it Constitutional to do it.