Gay marriage guaranteed under originalism/strict constructionism

[jmdrake]

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.

Interestingly enough, in her concurrence in Loving v. Texas, Sandra Day O'Connor indicated that she might have upheld general sodomy laws, but went along with striking Texas' sodomy law because it was same sex specific.

 

[CaptUSA]

People have a natural right to associate with whoever they want. Government should not interfere with that. Period. If they want to make some sort of contract, government should not interfere. It's a 1st amendment issue; not a 14th amendment issue.

There are no "valid" reasons to interfere when both (or more) parties are consenting. It's none of government's business.

 

[maybemaybenot]

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?

Wait, are you justifying the discrimination against gays by saying that other kinds of discrimination exist? You can't actually justify the categorization that states have created, so you're just going to flatly defend discrimination in general?

Unlike gay discrimination, discrimination based on age or blood relation (not family relation) actually does have a justification:

Young ppl cannot consent to sex or any serious contracts under our legal system. And no, different ages for different states is not discrimination, that has nothing to do with discrimination, that's different rules in different states. Discrimination is where a state applies the rules differently (or applies different rules) to different ppl within their jurisdiction. The fact that two separate entities make two separate decisions on the same issue is not discrimination, its two different entities.

Banning marriage based on blood relation (or at least banning intercourse) has a basis, and this was the rational, secular reason for our laws against incest. Centuries ago, adoption was almost nonexist, and so incest really did imply blood relation. Today, obviously that's not the case, and there is no justification for a category where ppl can't married or have sex if they have no blood relation.

But unlike banning child marriages or incestuous marries, there is no justification at all for banning gay marriage, hence you cannot articulate one. And if you could articulate one, I suggest you go to law school and become a lawyer, because you'd become the wealthiest attorney of all time. The argument doesn't exist, federal judges laugh out loud and say "You just can't come up with it, can you?," its like alchemy. Its not happening.

 

[GunnyFreedom]

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

In the absence of government coercion, it would simply be another 10 seconds worth of time to sign a document during the marriage process that assigns the spouse as next of kin. There is absolutely no need for government guns and coercion to get involved.

 

[jmdrake]

Wait, are you justifying the discrimination against gays by saying that other kinds of discrimination exist? You can't actually justify the categorization that states have created, so you're just going to flatly defend discrimination in general?

SMH. Learn to read. I'm saying if way to end all government discrimination in marriage is to get the government all the way out of marriage. It's retarded to push for state recognition of gay marriage when polygamy is actually criminal and the fact that most of those pushing for gay marriage aren't pushing for even decriminalization of polygamy shows they're a bunch of liberal hypocrites.

 

[jmdrake]

In the absence of government coercion, it would simply be another 10 seconds worth of time to sign a document during the marriage process that assigns the spouse as next of kin. There is absolutely no need for government guns and coercion to get involved.

Exactly! I don't get why people think it's harder to sign a will than it is to sign a marriage certificate. Plus with marriage your spouse is only guarantee 30% of your estate in some states. If you want to guarantee your spouse gets everything, or even half, you need a will or a trust or something other than a marriage certificate. Why people would allow the government to decide how their goods would be disposed of upon death is beyond me. You don't even need a lawyer. Write it out on a piece of notebook paper and sign it. That's a legal will in many states.

 

[GunnyFreedom]

Exactly! I don't get why people think it's harder to sign a will than it is to sign a marriage certificate. Plus with marriage your spouse is only guarantee 30% of your estate in some states. If you want to guarantee your spouse gets everything, or even half, you need a will or a trust or something other than a marriage certificate. Why people would allow the government to decide how their goods would be disposed of upon death is beyond me. You don't even need a lawyer. Write it out on a piece of notebook paper and sign it. That's a legal will in many states.

Too many people worship government as though it were a god. Even Christians. The 501(c)3 tax status has a lot to do with this.

 

[euphemia]

The issue with marriage has nothing to do with sentiment. It has everything to do with property rights and legitimacy of children. And taxes. Don't forget about the taxes.

1. There should be a date certain beyond which the current tax code is declared null and void. It should be replaced with a flat tax for every man, woman, and child, regardless of age, marital status, and income.

2. There should be a simple, legal way to dispose of property at one's death that does not involve courts or taxes.

3. There should be a simple, legal way to determine medical decisions. This should be determined by the patient, not the law.

Change these, and it does away with any advantage or disadvantage to marriage. Of course, the legitimacy of children will still be an issue, but lacking documentation, the woman who bears the child will likely end up with the authority to make decisions about the child. If there is a legal marriage, then both parents will bear equal responsibility and have equal authority to make those decisions.

 

[erowe1]

Take all of the things the federal government does that distinguish between married and unmarried people, which are a prerequisite for making the issue the OP brings up meaningful.

Each and every one of those things is excluded by the very same argument of strict construction of the 14th amendment that the OP appeals to.

 

[euphemia]

I am all about making people be responsible for the children they bear or father.

My personal morality and faith tradition protects marriage as one man and one woman, and for resulting pregnancies be carried to term. The Constitution does not define marriage in any way, and while the government has a vested interest in the disposition of property (because it might end up in a court), it should declare responsibility for a child born of a sexual relationship. The parents must be held to account in that regard, married or not.

Perhaps if a pregnancy results from sexual activity, a legal marriage should be declared. It might make people more responsible for their actions in general if there was a legal obligation that all property would then be held jointly and children would be supported fully by the parents of those children.

Just throwing that out there as a deterrent to irresponsibility that results in more government through welfare and other programs designed to support children.

 

[maybemaybenot]

SMH. Learn to read. I'm saying if way to end all government discrimination in marriage is to get the government all the way out of marriage. It's retarded to push for state recognition of gay marriage when polygamy is actually criminal and the fact that most of those pushing for gay marriage aren't pushing for even decriminalization of polygamy shows they're a bunch of liberal hypocrites.

Okay, you're being a bit ambiguous here, its why my post blatantly asked if I was interpreting you correctly. Don't jump on me cuz you won't state your position. If the government is involved in marriage, must it not also allow gay marriage?

And no, polygamy and gay marriage are not the same here, two reasons:

1. The constitutional (and human rights) violation in banning gay marriage is that its blatant gender discrimination, the only difference from heterosexual marriage is who a man can marry versus who a woman can marry, which goes against the Equal Protection Clause because there is zero rational basis behind the law. Allowing everyone to marry in 2-person marriages does not violate the Equal Protection Clause, because every individual has the exact same rights to marry one consenting adult of their choice. Maybe there's zero rational basis for banning polygamy, but there's also zero discrimination behind, too, so no constitutonal violation. That's like saying Bob can eat a burger but Jane can't eat dolphin cuz its banned, that's not discrimination, they have the exact same rights, but banning gay marriage results in individuals that do NOT have the same rights.

2. In practice, polygamy actually has been shown to be abusive and sexist, even if polygamy in theory is not. Polygamy isn't some open marriage, hippie thing, its men treating women like maids/workers in an agricultural setting (usually). The very religious scriptures justifying it always involve gender discrimination, and virtually no one is trying to start a marriage with multiple husbands. Now, its possible that polygamy is just as backwards as monogamy was two hundred yrs ago, but the government turned polygamy into a black market shithole like prostitution and drugs, so we're actually only seeing the worst of polygamy probably. But even then, there is a rational basis for saying "polygamy is a bad thing," even if its an illusion created by the legal prohibition of polygamy. We cannot look at gay marriage and point to a fact saying "gay marriage is a bad thing." As federal judges have routinely told attorneys, "you are clearly unable to articulate a single fact against gay marriage," (paraphrasing) which is not the case for polygamy.

 

[maybemaybenot]

The issue with marriage has nothing to do with sentiment. It has everything to do with property rights and legitimacy of children. And taxes. Don't forget about the taxes.

...

Change these, and it does away with any advantage or disadvantage to marriage. Of course, the legitimacy of children will still be an issue, but lacking documentation, the woman who bears the child will likely end up with the authority to make decisions about the child. If there is a legal marriage, then both parents will bear equal responsibility and have equal authority to make those decisions.

Take all of the things the federal government does that distinguish between married and unmarried people, which are a prerequisite for making the issue the OP brings up meaningful.

Each and every one of those things is excluded by the very same argument of strict construction of the 14th amendment that the OP appeals to.

Okay, but in reality, government marriage is here to stay. That being the case, it violates the equal protection clause and basic human rights to limit it based on gender. You can't just say "Oh, well I oppose this system entirely, so therefore I oppose discrimination." Do you think its constitutional to keep black ppl out of public schools, or to not send them social security checks? Equal protection, come on, ppl. We all pay for this institution (courts for divorce/kids, tax benefits, etc.), and therefore every citizen should get the same benefits from this institution. Its that simple.

You can't just say its ok because it would be awesome if government marriage didn't exist, this is a copout so homophobes can still pretend to be libertarians. (Btw, pro-lifers are still libertarians, its just a weird theoretical debate about individuals and life; homophobes are not libetarians, they're subscribers to the largest and dumbest bigotry of our era, and support discriminatory laws on that basis.)

 

[euphemia]

I don't care what people do in their own homes or spaces they rent or own. Seriously.

I think government should not try to sanction relationships. Or not. Welfare laws actually discourage marriage of any kind. It's all a way to control behavior through tax policy, while not really restricting anything except the right to make choices or use my money the way I want to.

My opinion about what people do privately is nobody's business but mine. At the same time, I should not have to violate my conscience by being forced to pay for something I might not agree to. Either way, the government is using my money to make a choice for me, or for someone else. It is not Constitutional. We all have freedom to choose what we want to believe without any penalty or endorsement by government at all.

 

[maybemaybenot]

I don't care what people do in their own homes or spaces they rent or own. Seriously.

I think government should not try to sanction relationships. Or not. Welfare laws actually discourage marriage of any kind. It's all a way to control behavior through tax policy, while not really restricting anything except the right to make choices or use my money the way I want to.

My opinion about what people do privately is nobody's business but mine. At the same time, I should not have to violate my conscience by being forced to pay for something I might not agree to. Either way, the government is using my money to make a choice for me, or for someone else. It is not Constitutional. We all have freedom to choose what we want to believe without any penalty or endorsement by government at all.

But the government cannot discriminate based on gender. Again, this is a copout. Are you saying the government can block blacks from getting married, too?

 

[euphemia]

this is a copout so homophobes can still pretend to be libertarians.

So does that make you a Christophobe? The Constitution is the basis for our liberty here in the US. People have freedom of faith and philosophy and the freedom of association. Just want to be clear on that.

 

[maybemaybenot]

So does that make you a Christophobe? The Constitution is the basis for our liberty here in the US. People have freedom of faith and philosophy and the freedom of association. Just want to be clear on that.

You're right, I misspoke, homophobes can be libertarians if they still believe in equal treatment, regardless of their personal views. So a homophobic libertarian has to say that government marriage, if in existence, has to be expanded to gays, based on libertarianism, the constitution, and general concepts of human rights.

 

[euphemia]

No, you misspoke by broadbrushing people who disagree as "homophobes."

I asked you a question. If you think people of faith should not be allowed to disagree, where does that put you on liberty issues, and does it make you a Christophobe?

 

[PierzStyx]

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

Prove it. Sociology says religion is one of the first things humanity invented. Religion says God (or the gods) revealed themselves to the earliest people. Either way you go religion is one of the oldest, if not *the* oldest, human institution. Fools just seem to not realize it because you go back far enough and our modern separation of church and state vanishes. The religion *is* the state. Pharaoh is a God. Gilgamesh is 2/3s a God. The reaosn people think marriage is purely a political institution is because of modern idiocy seeking to devoid religion of its historical purpose.

 

[Voluntarist]

xxxxx

 

[euphemia]

I do not think this is a 14th amendment issue at all. It's not even a Constitutional issue. The government does not establish marriage. The Census did not list it unitl 1850. States have taken the lead on determining the legality of marriage for a while, but every state did it differently, and continues to do it differently. For example, South Carolina had a common-law marriage statute, but now does not. Tennessee never recognized common-law marriages.

It still is not a federal issue.