The Constitutional Question I Have With Gay Marriage

[TheWizardOfMudd]

Since adoption of the Constitution, the states have had plenary power to regulate marriage and divorce. The breadth has ranged from consanguinity, required medical tests, paternity, support of spouses during marriage, post-marriage support, custody and creditor's rights, to name some.

I'm sure statutes have been challenged and I have not researched this issue on a Constitutional level. However, more than generally speaking, states have regulated marriage and divorce freely; period.

Therefore, my question is, as a Constitutional matter, why would it be unconstitutional for a state to forbid same sex marriage?

[K-W]

1. Equal protection.

Marriage is a civil institution, to give it to some and deny it to others is a violation of the consititution. Also many state constitutions contain more or differently phrased rights that are clearly counter marriage restrictions.

States are clear to regulate marriage, but they cannot do so in a manner that violates the federal constitution or their state constitutions.

[apnu]

3. "civil institution"?

That is a matter of perception. In the eyes of the law, yes its a civil institution, and rightly so I say. However, there are many in this country from a wide selection of beliefs and philosophies that would disagree with marriage being solely a civil matter. Which strikes at the heart of the debate.

The whole reason this is an issue at all, is because (IMO) small minded people somehow feel threatened by the idea of two homosexuals enjoying what few legal benefits marriage offers. In their strange sense of logic, their marriage is nulled by the fact that some same sex people are married somewhere "out there" I'll never understand that view...

I'm not trying to nit-pick you K-W, I agree with you 100%. I'm just trying to keep everyone reminded the kind of bigotry that we are facing on the issue of homosexual marriage. And oddly enough, its the same bigotry that battles against reproductive rights of women. Where the two meet, I don't think I'll ever know.

[PinkTiger]

2. I think it has to do with civil rights, equal protection under the law,

and it may be a 14th Amendment right.
This is the issue I understand.
Although it has been a State's power to regulate marriage and divorce, states aren't allowed to make laws that violate the Constitution.
But I'm not a Constitutional expert.
Lawyers, anyone????

[AP]

4. From the same authority they claim when they forbid incestuous marriages,

marriages between first cousins, marriages involving a minor.

Because it would be in violation of public policy.

However, I'm not sure how often the federal courts and US constitution get involved in a state's rules until there's an issue that involves more than one state, and that situation arises when one state is refusing to recognize a marriage (or a divorce) from another state.

And the federal courts will find an exception to the Full Faith & Credit requirement in the constitution (that states have to respect other state's rulings when they meet consitutional requirements -- eg, adequate notice, chance to be heard) when they accept a state's right to prevent marriages they think violate their public policy. Not allowing incestuous marriages, protecting minors, etc., are considered legitimate public policy concerns.

The question for gay marriage is whether there's a legitimate public policy concern in preventing them. If you read the other Constitutionall cases on this, the health concerns and protecting vulnenable children concerns don't really apply.

It's important to remember that even if there were a case in federal court that found that a state must recognize another state's gay marriages, that wouldn't force states to allow them.

Each state would have to pass legislation, and that legislation would have to be tested by that state's own constitution.

[K-W]

8. Right, you need justification to break equal protection.

A prevailing public interest that overides the right. Thats why there is such an efort to find actual evidence that Gay Marriage causes problems. Judges dont care what people want (or at least try not to), they only care if there is an compelling reason to let the state abridge the right to marry for same sex couples.

[AP]

9. Gender discrimination doesn't get the highest level of scrutiny.

I suspect that equal rights for same sex couples would be lucky to get that level of scrutiny:

the "substantial relationship" test, which requires the government shows an important reason to justify its classification, and there must be a close relationship between the government’s act and its purpose. The governmental act must be "reasonable, not arbitrary...and rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced will be treated alike."

http://www.abanet.org/publiced/lawday/talking/epgender.html

That's probably what both sides are aiming for in terms of making their arguments.

[amjsjc]

25. Requirements for strict scrutiny...

If I remember my con law class correctly (and I might not) in order for a group to be considered under strict scrutiny it must have been subject to a long history of overt discrimination, and be manifestly incapable of redressing its grievances through the ballot box (approximate quotes). While you could argue (as I would) that gays fall into this category, the court hasn't put them there yet. Basically the court will give a law the benefit of the doubt unless it involves a group that falls into strict scrutiny, in which case the state must prove that there is an absolutely compelling and not otherwise attainable reason for the law to exist. Frankly I think that any court that looked objectively at DOMAs would throw them out in a heartbeat, but we all know that courts will often do whatever flatters the ideological sensibilities of the majority.

[newyawker99]

26. Hi amjsjc!!

Welcome to DU!! :toast:

[AP]

27. Strict & Intermed scrutiny gives the plaintiff the benefit of the doubt...

...the government has the burden of proving the law is constitutional.

The theory that underpins Intermediate and Strict Scrutiny categories is that people shouldn't be punished for characteristics that they're born with and can do nothing to change.

Hmmm.

[mike1963]

5. To me (and I'm not a lawyer), the 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. "

----------------------------------------------------------------------

Note this was cited by SCOTUS in Bush v. Gore in 2000 to the dismay of many but which seems to me to have precedentally broadened its interpretation sufficiently to cover the subject you asked about.

There is nothing in the Constitution that mentions whatever 'privileges' are granted the imprimatur of law with respect to marriage, as far as I can tell, so it seems that states' attempts to remove one that is essentially undefined are contrary to the intent of the Amendment.

/2 cents

[Stephanie]

11. more

equal protection: an overview

The Equal Protection Clause of the 14th amendment of the U.S. Constitution prohibits states from denying any person within its jurisdiction the equal protection of the laws. See U.S. Const. amend. XIV. In other words, the laws of a state must treat an individual in the same manner as others in similar conditions and circumstances. A violation would occur, for example, if a state prohibited an individual from entering into an employment contract because he or she was a member of a particular race. The equal protection clause is not intended to provide "equality" among individuals or classes but only "equal application" of the laws. The result, therefore, of a law is not relevant so long as there is no discrimination in its application. By denying states the ability to discriminate, the equal protection clause of the Constitution is crucial to the protection of civil rights. See Civil Rights and Discrimination.

Generally, the question of whether the equal protection clause has been violated arises when a state grants a particular class of individuals the right to engage in activity yet denies other individuals the same right. There is no clear rule for deciding when a classification is unconstitutional....

http://www.law.cornell.edu/topics/equal_protection.html

[izzie]

6. It is just a contract when you get down to it.

Why can not gays make a contract? Once we move this into the religious things , I feel, is when the trouble starts. States seem to have trouble with that and marriage. I think it was even used when they would not blacks and whites married. Having a number of mates also.

[mike1963]

13. Yes, it is a contract, but one that automatically generates many benefits

to the parties thereto which are not available to people who
aren't permitted to participate. If government wants to grant special privileges to people who choose to marry, it cannot specify which persons may or may not be benificiaries. Religious ceremonies are optional, as they should be, and are not valid without the appropriate governmental approval. The alternative is, of course, for gov't. to divorce itself, so to speak, from the issue completely and cease official sanction of the institution altogether (or whatever's left of it, given the ~50% divorce rate.)

[TheWizardOfMudd]

24. State sanctioned marriage has nothing to do with a contract between two

Totally different.

[NCLib23]

7. With the MIchigan Law school case

The current law of the land is that a 'compelling state interest' overrules the protection garaunteed by the 14th amendment.

All a lawyer has to do is successfully argue there is a CSI in preventing homosexual marriage, and by precedent it can stand up to the constitutional test.

[AP]

10. There are three tiers. Race gets the highest tier of protection,

along with alienage, gender and illegitimacy the second highest, and indigence, age, mental disability, and sexual preference gets the third tier.

UofM was a race case and it didnt' change the law.

And in the unlikely even that same sex marriage got the highest tier of protection, it's more likely the argument would be that there is no compelling state interest in forbiding same sex marriages.

[Stephanie]

14. WHY is gender second?

Is there any rationale for the differentiation? That is outrageous.

[NCLib23]

15. What is outrageous

is the SCOTUSA usurping power and rewrtiing the 14th amendment to give it little or no legal weight!

[AP]

17. Because there are some legitimate distinctions between men and women

which the government is allowed to recognize, according to the Supreme Court.

There is almost never a legitimate reason to treat a black person differently from a white a person (there has to be a compelling reason, like redressing past discrimination).

But women are different physilogically. Women can have babies, which results in some legal differential treatment (in the favor of women). But thinking about it as getting less protection than race might be the wrong perspective. Gender gets more protections than most categories, but race gets the most. And the fact is, this intermediate scrutiny test has resulted in a ton of constitutional rights for women that might have been slower in coming if gender had been treated as a third tier categorization.

[Stephanie]

20. Hmmm. I will reluctantly accept that explanation....

and ponder it further.

thanks -

[JDPriestly]

12. The right to freedom in choosing who to marry

is an aspect of the fundamental right to privacy. Loving v. Virgina 388 U.S. 1, 57 S.Ct. 1817, 18 L.Ed.2d 1010 (1967)(establishing constitutional right to marry person of a different race). Courts apply "strict scrutiny" in reviewing the government's denial of a fundamental right. That means that the government's denial of a fundamental right such as marriage must be based on a compelling interest. To deny same-sex couples the right to marry, a state would have to persuade the courts that it has a compelling interest for denying that right. Tradition probably isn't good enough. Neither is the fact that many people view marriage as a religious rite since not all religions do, and the Constitution guarantees freedom of religion. It is hard to think of a truly compelling interest for denying same-sex couples the benefits of civil marriage.

In contrast, it is easy to find a compelling interest for denying marriage in cases of incest and marriage between first cousins -- genetic disorders in potential children. Denying the right to marry to second cousins is probably not OK either because the likelihood of genetic problems is minimal.

[NCLib23]

16. The argument can be made

that there is no fundamental right to privacy. It has been inferred by readers of the constitution, but it is not a fundamental right like speech or liberty.

Nor is marriage a fundamental right.

[Taylor Mason Powell]

19. But that argument is complete bunk.

The constitution means whatever the Supreme Court says it means. The Supreme Court has found a right to privacy in the Constitution.

Moreover, the Supreme Court has held that marriage is a fundamental right.

[NCLib23]

21. WHere

Where is it found to be a fundamental right? What ruling?

And just as the SUpreme court has inferred that right, they can re-evaluate it out of our lives. That is why it is NOT a fundamental right, it is an inferred one, subject to removal.

[Taylor Mason Powell]

22. Zablocki v. Redhail (1978)

Among others.

You can look it up yourself. Spend some time at www.findlaw.com.


EDIT: Here's the decision http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/zablocki.html

[Taylor Mason Powell]

18. Exactly.

As a soon-to-be-lawyer, I was going to jump into this discussion, but I can't add anything to your post. You've summed it up very nicely.

[AP]

28. The government applied strict scrutiny not because marriage is a fun-

damental right, but because equal protection under the law was denied on the grounds of race.

[lapauvre]

23. Unless and until

the word "spouse" on all employment forms, social security forms, medical forms, insurance forms, is replaced by the words "Spouse or legally contractual partner," then those homosexual relationships that have endured longer than a whole bunch of heterosexual marriages, disenfranchises American citizens who happen to be homosexual.

I am certain, that homosexual relationships have existed since time immemorial, but since the majority of us are heterosexual, we have not faced up, as a nation of equal rights and justice, to acknowledging such partnerships.

Our nation has, once upon a time limited, through bigotry and fear,equal rights, equal justice, to our fellow citizens who were "NOS", Not Our Sort. This included Jews, Blacks, Irish, Italian, French, Chinese, Amish, American natives, Germans and Japanese on specific occasions.

There would be no need for clogging the courts with lawsuits with regard to homosexual couples, if one stops fearing and tries a bit of understanding.

In our current time, as opposed to the time of the constitution, more and more homosexuals are "coming out of the closet."

We don't burn them anymore, as they did in puritanical Europe (Thence the name "faggots",) but we can't ignore them in a nation of supposed freedom, equal rights, and justice.

I really only knew of two homosexual couples. In the case of the two males, the relationship lasted more than thirty years. One of them committed suicide. His partner was threatened with arrest if he even attended the memorial service by the suicide's family. He has disappeared, and everything they had built together was left to the suicide's family.

In the second case, two females, the relationship has lasted for seventeen years. One became disabled, the other supports her, and cares for her, but is denied the right to be at her deathbed when the time comes.

I am heterosexual. My marriage lasted a little bit over thirteen years. My divorce was in 1969. But, if I predecease him, or vice versa, we would still be permitted into the room where the other one was occupied with dying.

One of us would have accessible to us the Social Security of the other.

There is every form of love and companionship, devotion and acceptance to be considered.

The only reason, except for a few--those who want to flaunt their difference, or those who emotionally want their love and devotion openly stated--that "marriage" is being sought is because employers, Social Security, hospitals, and our refusal to accept an injustice and equal rights to those different from us is codified on every legal document.

Change the wording of the legal documents, to "spouse or beloved contractual partner" in those documents that deny them equal rights, and I think there would be a great diminishment of those much photographed partners seeking marriage, who, although we may not understand them, are as much of a "couple" as any heterosexual couple.

I happen to be heterosexual (at the moment asexual) and I didn't really know too much about it, until I realized that these relationships, and the love and devotion demonstrated by these two couples I encountered was greater than I, a heterosexual, had experienced Although strange, and a bit uncomfortable when in their company, at first, I did see love and devotion. I saw a toleration of defects and disappointments that I, a heterosexual, could not endure.

But I still got benefits they can never have until gay marriage is accepted, or the wording is changed on Federal, Social security, medical, employment agreements, etc. are accomplished. They may seem strange or unholy or repugnant to the majority. But this IS America, and I think that those who respond just don't know anyone who is a homosexual and don't know the denials our laws, our fear of strangeness and differentness and religious edicts influence our denial of equal rights.