Gay marriage and the constitution
July 27th 2008 15:51
I've seen many arguments lately about gay marriage. I wrote an article not long ago debunking some of the popular myths about it effects on society, but now I feel the need to address it on a legal level (pertaining particularly to the US laws)
First and foremost, let me say that there is absolutely no definition of marriage in the constitution. It is up to rationally minded people to interpret what it does say.
14th amendment
"Section 1. 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."
The standard interpretation of this amendment is that it guarantees everyone equal rights under the law. No group should be singled out for privileged rights nor to be denied rights. This is the same amendment that gave blacks the right to desegregate and has protected everyone from illigitimate children to chinese laundry owners.
The standard response to this defense is "We aren't denying them the rights that we have. They can marry a person of the opposite sex just as the rest of us can." Doesn't it sound an awful lot like the rubbish spouted by the separate but equal crowd earlier in the century. By the way, the separate but equal laws were originally created under the guise of the 14th amendment and later overturned by the same amendment.
As far as the hullabaloo over the court's decisions to uphold gay marriage in certain states, it is not because they are "liberal judges" who are trying to "make laws." It is quite the opposite actually. In the last decision, they were relying on the laws laid forth in the constitution. As much as some may like it to be so, the people themselves are not allowed to pass laws that discriminate based on any basis. Lets say that the majority (60% or so) of Americans decided that they no longer liked people with red hair, and they vote to pass a law requiring all people with red hair to be put in a they a camp where they could live as one people. The courts would have the duty to deny the passage of the law as it is unconstitutional. They are not creating the law, but upholding it.
Some states have passed, or attempted to pass Defense of Marriage Acts similar to the one that Bill Clinton had passed when he was in office. The federal DOMA states:
1. No state (or other political subdivision within the United States) need treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state.
2. The Federal Government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.
The problem with this act is that it is once again completely unconstitutional and never should have made it past legislature. Here's why:
From article 1:
"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Clause 1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
This essentially means that the states must acknowledge the decisions made in other states. It does not mean that if California marries gay couples that every other state has to. It does mean that any marriage performed in CA has to be legal in any other state. Therefore, the Defense of Marriage Acts intended to block the validity of gay marriage that were passed in several states are unconstitutional. I have full confidence that our judicial system will find this soon enough and the acts will be overturned in full- both state and local.
As far as the religious argument, religion has no place in the making of laws. If you want to read more on that, you can check out my Thoughts on Why Everyone is Wrong.
For those that want to amend the constitution to make gay marriage illegal, let me remind you of the purpose of the constitution. It is not a document intended to restrict freedoms in any fashion. In fact, it is intended to guarantee that government is limited so as to never interfere with someone’s life, liberty, and happiness. Those who wrote the constitution knew that without limits the government would “turn to wolves” in the words of Jefferson. I do not see anyone's liberty or happiness being harmed by allowing gay marriage, but I do see them being harmed for disallowing it. Perhaps some people's outdated morals would be offended, but noone is forcing them to get a gay marriage if they disapprove. Just as noone will force anyone to smoke if they think it is wrong and noone will force anyone to have a beer if they don't believe in drinking. I think it is very hypocritical that the majority of the people who are so against gay marriage are the same people who are so interested in the rights guaranteed by the 2nd amendment. They will defend it to the death when it comes to holding a gun, yet completely ignore the rest of what the constitution has to say. It seems that if it isn't written in exact and plain terms, than it is not valid. If that were case, we would still have segregation. Open your minds and read the law. I challenge anyone to make a constitutional argument against gay marriage. That means without using the words "god," or "bible," and without spouting your personal opinion of gay marriage. I can gaurantee that it is impossible.
First and foremost, let me say that there is absolutely no definition of marriage in the constitution. It is up to rationally minded people to interpret what it does say.
14th amendment
"Section 1. 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."
The standard interpretation of this amendment is that it guarantees everyone equal rights under the law. No group should be singled out for privileged rights nor to be denied rights. This is the same amendment that gave blacks the right to desegregate and has protected everyone from illigitimate children to chinese laundry owners.
The standard response to this defense is "We aren't denying them the rights that we have. They can marry a person of the opposite sex just as the rest of us can." Doesn't it sound an awful lot like the rubbish spouted by the separate but equal crowd earlier in the century. By the way, the separate but equal laws were originally created under the guise of the 14th amendment and later overturned by the same amendment.
As far as the hullabaloo over the court's decisions to uphold gay marriage in certain states, it is not because they are "liberal judges" who are trying to "make laws." It is quite the opposite actually. In the last decision, they were relying on the laws laid forth in the constitution. As much as some may like it to be so, the people themselves are not allowed to pass laws that discriminate based on any basis. Lets say that the majority (60% or so) of Americans decided that they no longer liked people with red hair, and they vote to pass a law requiring all people with red hair to be put in a they a camp where they could live as one people. The courts would have the duty to deny the passage of the law as it is unconstitutional. They are not creating the law, but upholding it.
1. No state (or other political subdivision within the United States) need treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state.
2. The Federal Government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.
The problem with this act is that it is once again completely unconstitutional and never should have made it past legislature. Here's why:
From article 1:
"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Clause 1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
This essentially means that the states must acknowledge the decisions made in other states. It does not mean that if California marries gay couples that every other state has to. It does mean that any marriage performed in CA has to be legal in any other state. Therefore, the Defense of Marriage Acts intended to block the validity of gay marriage that were passed in several states are unconstitutional. I have full confidence that our judicial system will find this soon enough and the acts will be overturned in full- both state and local.
As far as the religious argument, religion has no place in the making of laws. If you want to read more on that, you can check out my Thoughts on Why Everyone is Wrong.
For those that want to amend the constitution to make gay marriage illegal, let me remind you of the purpose of the constitution. It is not a document intended to restrict freedoms in any fashion. In fact, it is intended to guarantee that government is limited so as to never interfere with someone’s life, liberty, and happiness. Those who wrote the constitution knew that without limits the government would “turn to wolves” in the words of Jefferson. I do not see anyone's liberty or happiness being harmed by allowing gay marriage, but I do see them being harmed for disallowing it. Perhaps some people's outdated morals would be offended, but noone is forcing them to get a gay marriage if they disapprove. Just as noone will force anyone to smoke if they think it is wrong and noone will force anyone to have a beer if they don't believe in drinking. I think it is very hypocritical that the majority of the people who are so against gay marriage are the same people who are so interested in the rights guaranteed by the 2nd amendment. They will defend it to the death when it comes to holding a gun, yet completely ignore the rest of what the constitution has to say. It seems that if it isn't written in exact and plain terms, than it is not valid. If that were case, we would still have segregation. Open your minds and read the law. I challenge anyone to make a constitutional argument against gay marriage. That means without using the words "god," or "bible," and without spouting your personal opinion of gay marriage. I can gaurantee that it is impossible.
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Comment by Trooper Thompson
I am not personally involved in this debate, living in England as I do, and if a gay couple wish to enter into a contractual relationship that's their business, but marriage refers to an arrangement with a husband and a wife, and always has.
Comment by Josie
Waxing Political
Unique Parent
Comment by Natalie 2
My Life My Muse
Beta Girl Blog
I hate it when people seem to feel that by allowing something, we are infringing on their rights. Laws are restrictive. The lack of a law endorses nothing, only that there is no clear reason to restrict that activity.
Laws should only be passed to restrict activities that there is a clear consensus on. If, in the case of Gay Marriage, there is clearly not a consensus on the nature of the activity, we cannot restrict it. And it doesn't mean even that the Gov't has taken the side of Gay Marriage, simply that there is no evidence that it should be deemed a criminal act, and therefore, it cannot be restricted.
NOT banning, outlawing, or restricting something actually affords the Gov't the ability to be neutral, as it gives everyone the opportunity to pursue their happiness, regardless of how they feel about an issue.
Again, great post.