Gay marriage guaranteed under originalism/strict constructionism

[maybemaybenot]

Discrimination based on sexual orientation is just gender discrimination, no? And the 14th amendment's drafters made it purposely open-ended, so to say it doesn't apply to gender (or to sexual orientation without the gender connection) is baseless, its open-ended and inclusive by default. It would be unusual and bizarre for any arbitrary legal category to "get around" the 14th amendment, and gay marriage bans are as arbitrary as it gets.

I'm not saying this as a supporter of it, its just clearly they're in the constitution, its equal protection. I don't think abortion is guaranteed even though I'm pro-choice, but gay marriage is. Lol the entire purpose of the law is to "make a statement." That's just admitting to violating the Equal Protection Clause, its labeling ppl for the sake of labeling ppl.

 

[heavenlyboy34]

Marriage is a 1st amendment issue. (see the religion clause. Marriage is a religious institution) No doubt some clergy/ministers/etc would marry teh gheys, but lots would refuse and be within their rights.

 

[Sonny Tufts]

Marriage is a 1st amendment issue. (see the religion clause. Marriage is a religious institution)

Not really. There were marriages long before the institution became involved with religion. The issue isn't whether the government can force a religious body to marry a same-sex couple (it can't), but whether the government can discriminate against such couples by refusing to allow them to be married in a civil ceremony.

 

[tod evans]

Not really. There were marriages long before the institution became involved with religion.

Oh bullshit!

 

[maybemaybenot]

Its not just a religious institution. The fact that atheists get married contradicts this. An atheist has a constitutional right to get married, just like theists, simply on equal protection (theists and atheists get the same rights), and first amendment (right to association). The fact that its history is religious doesn't permanently tie it to religion. Private property, government, corporations, armies, all of these have religion intertwined with their history. To say that the First Amendment, which bans endorsement of religion of any kind (unless you wanna pretend Christianity is there when its not, because our founders did not intend to put it there), creates a governmental benefit of some kind (tax benefits, recognition, etc.) that only involves religion is ridiculous.

Your interpretation of the First Amendment contradicts the First Amendment, government can't endorse religion. By your logic, government-marriage should be banned. (Actually, are you saying this? Maybe I'm jumping to conclusions about you.)

 

[GunnyFreedom]

Yes, government based marriage should be banned.

 

[Southron]

The 14th amendment was ratified by coercion. Forgive me if I dont think too highly of it.

 

[Sonny Tufts]

Yes, government based marriage should be banned.

Suppose it were. If a person dies without a will, who gets his or her property?

 

[specsaregood]

//

 

[Sonny Tufts]

Are you implying that you need a government marriage in order to ensure the wife/husband gets it?

How else is the government to determine who a person's "spouse" is, especially where there are competing claims to the estate?

 

[specsaregood]

How else is the government to determine who a person's "spouse" is, especially where there are competing claims to the estate?

Well there is always a private contract option, I'd say a witnessed religious ceremony should count or even there used to be this concept called a common-law marriage. If 2 people simply say they are married and there are witnesses to it, that should be enough. If marriage is a right, why do you need the government to give them the privilege to do so?

 

[jmdrake]

Not really. There were marriages long before the institution became involved with religion.

Absolutely not true.

The issue isn't whether the government can force a religious body to marry a same-sex couple (it can't), but whether the government can discriminate against such couples by refusing to allow them to be married in a civil ceremony.

Gays, unlike polygamists, can be married in a civil ceremony in any state in the union. The question is can does the government then have to recognize said private ceremony. Further in many states if you wish to marry your first cousin or closer you can be arrested. Genetic preference discrimination? Does having different marriage ages in different states constitute age discrimination?

 

[jmdrake]

Suppose it were. If a person dies without a will, who gets his or her property?

That's really a silly argument. Seriously. Don't die without a will. If you can take the time to fill out an application for a marriage certificate you can take the time to write on a piece of paper "I leave all of my possession to X." And if you don't like wills do a living trust. Have a joint checking account. There are lots of ways to pass possessions on to someone else when you die.

 

[Sonny Tufts]

Well there is always a private contract option, I'd say a witnessed religious ceremony should count or even there used to be this concept called a common-law marriage.

True, but if there's a dispute a common-law marriage (or a valid contractual one) has to be proved in court, so you still have the government (i.e., the judicial system) determining the existence of a marriage. And many states have abolished the common-law marriage concept because of the uncertainties of proof, relying instead on an objective test: marriage license plus a ceremony before someone authorized to legally marry people.

And relying on a religious ceremony is problematic because you have the government deferring to a religious institution; in case of conflicting claims (e.g., did the marriage comply with all the necessary religious formalities?) the court could get forced into determining theological matters, which it should not be doing.

 

[Sonny Tufts]

That's really a silly argument. Seriously. Don't die without a will.

That's excellent advice that unfortunately isn't always followed. The point isn't what should one do to avoid intestacy; the point is, what happens to an intestate's property? If you want it to go to a surviving spouse, how is the relationship of "spouse" to be determined?

 

[specsaregood]

True, but if there's a dispute a common-law marriage (or a valid contractual one) has to be proved in court, so you still have the government (i.e., the judicial system) determining the existence of a marriage. And many states have abolished the common-law marriage concept because of the uncertainties of proof, relying instead on an objective test: marriage license plus a ceremony before someone authorized to legally marry people.

And relying on a religious ceremony is problematic because you have the government deferring to a religious institution; in case of conflicting claims (e.g., did the marriage comply with all the necessary religious formalities?) the court could get forced into determining theological matters, which it should not be doing.

Its not a perfect world. I didn't think the argument was to get rid of courts or the judicial system, I didn't think that was your question either. The point remains there are plenty of options other than the need for a government licensed marriage. Yes, if 2 people decide to use a religious institution to marry, why not defer to it? That was THEIR choice.

I'm of the opinion that if 2 people say they are married, they are married. That should be enough.

 

[Sonny Tufts]

The question is can does the government then have to recognize said private ceremony. Further in many states if you wish to marry your first cousin or closer you can be arrested. Genetic preference discrimination? Does having different marriage ages in different states constitute age discrimination?

There are valid reasons to prohibit marriages between close relatives, and since some minimum age limit has to be set it isn't age discrimination. On the other hand, no one has yet come up with a valid reason to deny same-sex couples the right to legally marry.

 

[jmdrake]

That's excellent advice that unfortunately isn't always followed. The point isn't what should one do to avoid intestacy; the point is, what happens to an intestate's property? If you want it to go to a surviving spouse, how is the relationship of "spouse" to be determined?

You didn't actually address what I said. I will repeat it. It takes no more effort to fill out a will than it does to fill out a marriage certificate. Seriously. It doesn't. The point of the government isn't to protect people from their own stupidity. If the government got out of the marriage licensing business, responsible clergy (or ship captains or whoever atheists will get to marry them) will be on notice that instead of running couple down to make sure they've signed the government sanctioned marriage certificate, they will run couples down to make sure they've signed the church (or ship or whatever) sanctioned "marriage contract". Really. It's just a freaking piece of paper. What makes one any better than the other? (Rhetorical question there.) When I got married the preacher chased us down afterwards to make sure we got the marriage license signed. Whoopteedoo! The state says we're married. (I'm divorced now. Fat lot of good that piece of paper did.) So no. I don't at all believe that someone having to sign a document that actually spells out their wishes is somehow worse than someone having to sign a document where only the lawyers ultimately know what it means. Seriously. In different states spouses get different amounts when the other spouse dies. If you think being married means your spouse gets everything, then you don't really know anything about estate law. In some states the spouse only gets 50% or less. But that's not written on the marriage certificate. That's written in the state statute which most likely nobody at the wedding ceremony has read. If getting the state out of marriage means more people write wills or do trusts instead of counting on the state to make up for their own stupidity, I fail to see why that is a bad thing.

Edit: More on elective share. In Florida the spouse only gets 30% if there is no will.

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0732/0732.html

Dying without a will or a trust is dying intestate regardless of whether you are married or not. Gays who sit down with a lawyer (or a good do it yourself legal book) and figure this out for themselves are better off than straight couples who naively think the government's going to handle it for them.

 

[William Tell]

The 14th amendment was ratified by coercion. Forgive me if I dont think too highly of it.

Agreed, but even if one considers the 14th amendment legitimate. There is still the fact that sodomy laws were common place until recently. 'Same sex marriage' is an absurd joke made up by modern liberals.

 

[jmdrake]

There are valid reasons to prohibit marriages between close relatives, and since some minimum age limit has to be set it isn't age discrimination. On the other hand, no one has yet come up with a valid reason to deny same-sex couples the right to legally marry.

Really? Because I can't think of any. The whole "They might have birth defects?" Well gays can't have kids at all without outside help. Maybe cousins are willing to do that. Once we decide marriage is not about having children, then to discriminate against incest "for the children" is silly. As for the minimum age, it's inflated. People used to get marriage much younger than they do now. Why is it 18 in most states? To encourage young people to finish high school. But say if someone gets his/her GED at 18? And before you had minimum ages, you didn't typically have 4 year olds getting married. People used some common sense. Imagine that? Now "common sense" is a HS senior becoming a registered sex offender for life for sleeping with his girlfriend that's two years younger than him. That seems pretty stupid to me. But that's the world we live in. Yeah big government!