Why doesn't anyone frame the pro-gay marriage argument in the First Amendment context?

[Counciltucky]

Think about it: marriage is definitely a speech act, an act which communicates a bond between two people to others. Restricting it is restricting freedom of speech.

And that isn't even delving into the freedom of religion aspect. Churches have the right to decline to marry homosexual couples (like most non-Episcopal churches) -- separation of church and state should not be infringed -- but the state should NOT restrict marriages to anyone who wants it, gay or straight.

We on the pro-gay rights side should argue in the context of the First Amendment. The Constitution should be respected no matter what, and denying gay rights is denying First Amendment rights.

[rwenos]

1. First Amendment Protects Speech, Not Acts

The Court has pretty consistently ruled that, while the First Amendment restrains government power to impede SPEECH, the First Amendment does not protect ACTS.

The lead case I read in law school on this issue was a case from Oregon, where a Native American practitioner of a folk religion asserted a right to ingest peyote as part of his religious observance. Held, he can think and say what he wants, but peyote is illegal and so there's no First Amendment protection for ingesting it. Can't remember the name of the case, but the State of Oregon would be a party, and it would have been decided in the mid- to late 1980s.

Sorry.

[Der Blaue Engel]

2. American Indian Religious Freedom Act Amendments of 1994

According to this website, following the 1990 Supreme Court ruling, the American Indian Religious Freedom Act was amended by Congress in 1994, protecting the right of Native Americans to use peyote for religious ceremonies:

http://www.nativeamericanchurch.com/law.html

[Solly Mack]

4. Flag burning is an act and is speech

and has been protected as speech

Yes, I'm aware it's under attack but that doesn't change that it is an act that is speech.

Just one example where an act is considered free speech.

The SCOTUS upheld it as free speech as well in Texas V Johnson and U.S. v. Eichman

[HiFructosePronSyrup]

7. Where on earth did you get that idea?

Certainly not in civics classes.

The First Amendment protects the right to act by going to the church of your choice, the act of printing what you want in the press, the act of assembling, the act of petitioning the government for grievances, and the act of speech, such as burning a flag.

Sheesh.

[Counciltucky]

8. Exactly.

If an act is clearly representative of something, it's protected by the First Amendment.

[cboy4]

3. How about simply asking, how does allowing a same sex couple

tying the knot really affect a straight person's life negatively?

The last time I checked, civil war has not broken out in Canada and in Spain and in Holland, etc., where gay marriage is legal.

http://en.wikipedia.org/wiki/Same-sex_marriage

[GreenZoneLT]

5. They don't ban gay marriage ceremonies

UU churches and some other denominations have been doing those for years, including in states with "gay marriage bans." What the marriage-ban laws affect is the state-sponsored privileges of marriage, embodied in a marriage license (which is a civil legal contract).

You can get married in the eyes of a church anywhere you like, you just can't get survivor benefits or tax breaks, or dependant insurance, etc.

[Counciltucky]

6. That's what I meant: state sponsorship. n/t