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Why gay marriage bans are unconstitutional

cpwill

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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.

well, alright, we've gotten that far at least :)
 

cpwill

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You seem to be avoiding us cpwill.

:) i'm getting bored with the topic. both of us are repeating ourselves and have been for pages.

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?

it doesn't. fortunately defining marriage as between one man and one woman does not do such a thing. where in the Constitution does it give homosexual marriage advocates the right to overthrow representative government if they don't like what the soveriegn people of this nation tell their government to do?
 

cpwill

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

no, i think you are mistating the action here. no woman's ability to perform any deed is restricted with regards to marriage. a woman may marry a woman, she may have a ceremony, they can live together till the end of their days, call each other "spouse", tell everyone they meet they are married, raise kids, etc. the only entity whose actions are being restricted are those of the state; namely in the form of issuing a lisence, and the states actions are rightly being restricted because of the set of definitions that have been imposed on it by the people.
 

Zyphlin

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no, i think you are mistating the action here. no woman's ability to perform any deed is restricted with regards to marriage. a woman may marry a woman, she may have a ceremony, they can live together till the end of their days, call each other "spouse", tell everyone they meet they are married, raise kids, etc. the only entity whose actions are being restricted are those of the state; namely in the form of issuing a lisence, and the states actions are rightly being restricted because of the set of definitions that have been imposed on it by the people.

Can or cannot a woman get a marriage liscense from the state saying they're married to a woman?

Can or cannot a man get a marriage liscense from a state saying they're married to a woman?
 

Harshaw

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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.

The problem, Zyph, is that these cases have been decided on the basis of discrimination against homosexuality, not against gender. Now, I haven't read every single case, but I've read most of them, and that's the way they go down.
 

Zyphlin

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The problem, Zyph, is that these cases have been decided on the basis of discrimination against homosexuality, not against gender. Now, I haven't read every single case, but I've read most of them, and that's the way they go down.

Oh that's fine. I know that's how most of the people have been approaching that issue.

That's fine. They can approach it that way if they want. And I fully support the courts striking it down for that reason.

Just because that's how OTHERS argue it though doesn't mean I am not allowed to use my own judgement and my own arguments. I don't think its unconstitutional based on the arguments they make, I believe it to be unconstitutional based on gender. The fact gay rights groups wish to focus on getting sexual orientation as a recognized higher tier category and thus focus their efforts in getting it overturned based on that to then have precedence for the higher teir is irrelevant to whether or not my argument is correct or not regarding constitutionality. :) I've been making this argument for well over a year now.

The above, by the way, is why I honestly think they DON'T challenge it in courts under the gender issue. For many in the LGBT movement this is as much attempting to legally legitimize sexual orientation as a legally acknowledged protected class on par with at least gender if not with race and are using gay marriage as a wedge issue to try and get the surpreme court to essentially add them to that higher standard. Getting Gay Marriage is definitely a part of it, but I do think at the higher tops of the movement that are pushing this and relaly supporting this the previous is the main motive or at least the LARGER goal. Doing it based on gender wouldn't accomplish that and sexual orientation would remain a bottom teir classification at best, which would not aid them in other discrimination type things they may wish to strive for as a movement next.
 

cpwill

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Can or cannot a woman get recieve from the state which is in the act of issuing a marriage liscense from the state saying they're married to a woman?

Can or cannot a man get recieve from the state which is in the act of issuing a marriage liscense from a state saying they're married to a woman?

that is up to the state in question, and how they choose to regulate who they will issue marriage licenses to or not. some states, for example, currently do, some states currently do not.
 

cpwill

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The above, by the way, is why I honestly think they DON'T challenge it in courts under the gender issue. For many in the LGBT movement this is as much attempting to legally legitimize sexual orientation as a legally acknowledged protected class on par with at least gender if not with race and are using gay marriage as a wedge issue to try and get the surpreme court to essentially add them to that higher standard. Getting Gay Marriage is definitely a part of it, but I do think at the higher tops of the movement that are pushing this and really supporting this the previous is the main motive or at least the LARGER goal.

bingo. homosexual marriage isn't about the marriage, it's about the homosexuality.
 

CriticalThought

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The problem, Zyph, is that these cases have been decided on the basis of discrimination against homosexuality, not against gender. Now, I haven't read every single case, but I've read most of them, and that's the way they go down.

I suggest you read Judge Walker's ruling.
 

Zyphlin

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that is up to the state in question, and how they choose to regulate who they will issue marriage licenses to or not. some states, for example, currently do, some states currently do not.

However, the FEDERAL constitution overrides state laws.

The FEDERAL constitution contains the equal protection clause that makes government laws have to meet a certain criteria to be discriminatory.

The Equal Protection Clause covers Gender as a protected group at the Medium-Tier scrutiny level.

Therefore a state can't constitutionally discriminate based on gender in regards to their laws or contracts unless it meets the needed level of scrutiny.
 

Zyphlin

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bingo. homosexual marriage isn't about the marriage, it's about the homosexuality.

For the most part, I agree.

Too bad that has nothing to do with what I'm arguing, because I'm not arguing for Homosexual Marriage. I'm arguing for Same-Sex Marriage
 

CriticalThought

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no, i think you are mistating the action here. no woman's ability to perform any deed is restricted with regards to marriage. a woman may marry a woman, she may have a ceremony, they can live together till the end of their days, call each other "spouse", tell everyone they meet they are married, raise kids, etc. the only entity whose actions are being restricted are those of the state; namely in the form of issuing a lisence, and the states actions are rightly being restricted because of the set of definitions that have been imposed on it by the people.

The state does not have the right to regulate marriage in a manner that violates people's Constitutional rights. Constitutional rights are not up to a state majority vote.
 

cpwill

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well then you're looking at Reynolds v United States, which upheld the right of the legislature to define marriage in a disriminatory fashion, even to the extent of explicitely limiting first amendment rights.
 

cpwill

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The state does not have the right to regulate marriage in a manner that violates people's Constitutional rights. Constitutional rights are not up to a state majority vote.

you do realize that repeatingly your assumptions endlessly does not make them true?
 

Zyphlin

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well then you're looking at Reynolds v United States, which upheld the right of the legislature to define marriage in a disriminatory fashion, even to the extent of explicitely limiting first amendment rights.

I never denied the right of the legislature to define marriage in a discriminatory fashion. However that fashion must reach a certain standard based on the manner in which they're discriminating.

The issues in Reynolds is Polygamy, which is the marrying of multiple people, rather than same sex marriage, which is just marrying one of the same sex. While related, in that they both have to do with marriage, beyond that they are strikingly different. They are not a correlation that can be used to say one allows for the other.

Reynolds was also argued constitutionally in regards to the 1st amendment, not the 14th, specifically infringing upon religious freedoms. Such is not the argument in my same-sex marriage argument.

So that court case is tangental at best to my argument, and in no way counters it.
 

CriticalThought

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well then you're looking at Reynolds v United States, which upheld the right of the legislature to define marriage in a disriminatory fashion, even to the extent of explicitely limiting first amendment rights.

Bigamy is judged to be criminal in the United States. Your right to exercise freedom of religon does not allow you to commit criminal acts. If that were the case then every murderer would simply argue that their religion required them to kill and that the state had no right to interfere.

Not in a single state is same sex marriage considered criminal. Same sex couples may not be permitted in some states to marry but they obtain no fines or penalties if they do.

Furthermore, Reynolds v. the United States challenged the Morrill Anti-Bigamy Act on the grounds of the 1st amendment, not the 14th. As such, it is incomparable to same sex marriage. Advocates for same sex marriage are arguing that they have a right to marriage because of the 14th amendment not because their religoin says they do.

And finally, the state limiting the number of the contracts you have is not the same as the state dictating the terms of the contract by taking gender into consideration. The state can argue that I'm not allowed to have 10 driver's licenses from 10 different states at the same time or buy 100 hunting licenses for myself, and the state can assess criminal penalties for doing so, but the state cannot argue that I'm not allowed to have a driver's license because I'm man or that I'm not allowed to have a hunter's license because I'm a man. The same holds true for bigamy and same sex marriage. The state can argue that I'm only allowed to have one marriage license, but it cannot argue that I'm not allowed to marry a man just because I'm a man.
 
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cpwill

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Bigamy is judged to be criminal in the United States. Your right to exercise freedom of religon does not allow you to commit criminal acts.

interesting reply. so if sodomy were still illegal, you would support those laws as constitutional?
 

CriticalThought

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interesting reply. so if sodomy were still illegal, you would support those laws as constitutional?

You split my post. The reason that bigamy is illegal is because nobody in the United States is allowed to have more than one marriage contract just as no one in the United States is allowed to have more than one driver's license. The state does have a legitimate interest in limiting the number of marriage licenses any individual can have.

If sodomy were still illegal then same sex couples would have considerably less right to marriage. A state still cannot limit the terms of a license on the basis of gender alone without legitimate cause. However, if sodomy were illegal, then the state would probably argue that it had a legitimate reason in defining marriage as between a man and a woman in order to prevent sodomy. In Lawrence versus Texas, some of the justices readily recognized that casting out sodomy laws was the same as casting out the only legimate reason to keep same sex couples form marrying.
 
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