Should gay marriage be voted on by states or made a federal law

[steampunk]

The first thing that comes to mind is, Equal protection from what? Is there a right to marriage?

There never was a law the says a white man has a right to sit in Denny's. To answer your question, it would be equal protection from being denied the rights that all citizens enjoy.

In my view, marriage is like any other state license. You meet the requirements for licensing, pay a fee and receive a license. There is no right to a state license if the state established requirements have not been met by the applicant. I don't need a license to exercise any of the other rights endowed upon me by the Constitution, so why would I need a license from the state to allow me to exercise my right to marriage - if there is a right to marriage? I can therefore only conclude that a license of marriage is not a right.

If you want a licence to drive, you must take a safety test. You only receive the license if pass the safety test. If you want to serve food, you must know how to do so safely or you cannot serve food. No test requirements exists like this for marriage. Marriage seems to be categorically misplaced in terms of licensing. If a test were put in place, it would be a test to see if your marriage were unsafe in some way to society or that the marriage was to bring something about criminal (crime:harming others). The criteria is ridiculous to use sexual orientation which has no consequence of safety or harm to society.

Additionally, the Equal Protection Clause has only been applied to race, not sexual preference.

Philosophically, the evolution of the law has been to protect against abject discrimination because is hurts the greater good of society. Not only is it unfair to discriminate using petty reasons to take away generally accessible rights, but it's impractical. For example, how should we spend our time and money, fighting moral battles and imposition of preferences upon others or developing policies that help our business?

Extending anti discrimination to sexual preferences could end up with some pretty interesting and unintended results. Most notably, laws requiring child predators to stay away from children would become null and void as those laws discriminate based on sexual preference.

No. You are confusing genital orientation with age orientation. This implication causes borderlining on those statements that gays are paedophiles, as if gay marriage has something to do with that or that there is some logical correlation?

I see nowhere in the Constitution the right to marriage. I see a number of other rights, but I don't see a right to a license of marriage. So since I see no right to marriage, I see no abridgement of rights and the Equal Protection Clause. One has to have a right before it can be abridged.

How could you write down a gazillion things that are harmless to do anyway and say these are our right? America already covered that one. It's our law and our philosophy. It's called: Freedom. It's all our right wrapped up in one word. The only things not covered are those things that harm others, that is what is called a crime. Sexual orientation hurts no one. Why is it being discussed as a reason to block Freedom? Those blocking are at this moment committing crimes and trampling America's greatest philosophy: Freedom.

[NMSquirrel]

Exactly my point. The problem isn't the law in itself at this point, it's that society has become so inundated with these petty laws that we RELY on them to make our notional judgement... we are all but INCAPABLE of thinking for ourselves XD

AMEN!..
the powers that be think we are too stupid to think for ourselves..yes some are incapable of self control, but that should not be a reason to make such petty laws..

[joepistole]

There never was a law the says a white man has a right to sit in Denny's. To answer your question, it would be equal protection from being denied the rights that all citizens enjoy.

Is there a point in there somewhere? What does going to Denny’s have to do with getting a license from the government? NOTHING, ABSOUTELY NOTHING.

In order to be denied rights under the equal protection clause, you first must have those rights. And nowhere in the law does it say marriage is a right. I have as much right to a medical license as I do a marriage license. That is the big hole in your argument – the very, very big hole.

If you want a licence to drive, you must take a safety test. You only receive the license if pass the safety test. If you want to serve food, you must know how to do so safely or you cannot serve food. No test requirements exists like this for marriage. Marriage seems to be categorically misplaced in terms of licensing. If a test were put in place, it would be a test to see if your marriage were unsafe in some way to society or that the marriage was to bring something about criminal (crime:harming others). The criteria is ridiculous to use sexual orientation which has no consequence of safety or harm to society.

Not that this is the least bit relevant, because it is not, but in many states candidates for marriage must pass a blood test and genetic screen (inbreeding is illegal in most states). We get the point you think that marriage discrimination based on sexual preference is ridiculous. But that is your opinion and there are many others who don’t feel the same way.

Philosophically, the evolution of the law has been to protect against abject discrimination because is hurts the greater good of society. Not only is it unfair to discriminate using petty reasons to take away generally accessible rights, but it's impractical. For example, how should we spend our time and money, fighting moral battles and imposition of preferences upon others or developing policies that help our business?

While I don’t think government belongs in the bedrooms of the land, the fact is we are not a government of philosophy but a government of laws and precedent and the laws nor legal precedent support your contentions, neither does the judiciary. In order for your opinion to become the law of the land, you will need to change the laws and the judiciary.

No. You are confusing genital orientation with age orientation. This implication causes borderlining on those statements that gays are paedophiles, as if gay marriage has something to do with that or that there is some logical correlation?

Confusing genital orientation with age orientation, what the hell does that mean? So you are saying older women cannot marry younger men or visa versa because of age orientation? No the issue is same sex marriage, not sexual discrimination. The fact is if you make blanket changes like saying sex discrimination based on sexual or orientation is no longer legal, then you void laws separating child sexual predators from objects of their sexual orientation. SEXUAL ORIENTATION IS NOT THE CORRECT DESCRIPTION OF THIS ISSUE. People are sexually attracted to many things up to an including cars and animals. So are you going to allow marriages to cows and cars? We are talking same sex marriage here. And you should say so, not couch it in less and inaccurate descriptions. This is a gender issue. It is not a sexual orientation issue.

How could you write down a gazillion things that are harmless to do anyway and say these are our right?

What the Hell are you talking about?

America already covered that one. It's our law and our philosophy. It's called: Freedom. It's all our right wrapped up in one word. The only things not covered are those things that harm others, that is what is called a crime. Sexual orientation hurts no one. Why is it being discussed as a reason to block Freedom? Those blocking are at this moment committing crimes and trampling America's greatest philosophy: Freedom.

What impresses me here is that people on the extreme right and extreme left both like to throw words with reckless abandon, with little thought and little understanding. Let me remind you that our Constitution recognized the institution of slavery for almost a century. Slavery is not consistent with the notion of American FREEDOM that you just referenced. So your notion that everything that hurts someone is a crime and everything that doesn’t isn’t a crime is not only not sustained by the evidence of history, it is just plain silly.
If everything that hurt someone was a crime, a lot of lovers would be in jail for hurting their lovers – another example of simple and uninformed thinking.

[Grumpy]

joepistole

In order to be denied rights under the equal protection clause, you first must have those rights. And nowhere in the law does it say marriage is a right. I have as much right to a medical license as I do a marriage license. That is the big hole in your argument – the very, very big hole.

As I pointed out, there are several places "in the law" that say that "Marriage is one of the "basic civil rights of man,"" as quoted from the Loving v Virginia Supreme Court of the United States decision. So they do fall under the 14th Amendment "Equal Protection Under the Law" clause and gays do have that right to marry unless and until the state can provide an actual substantive reason why not(and prejudice is not a substantive reason, it's more a personal problem). And just like in Loving, the right existed in the Constitution even as the prejudice and bigotry of some in society(the majority in some states)fought to prevent the Lovings from excersizing that right. Obama's parents were in violation of some states' laws forbidding interracial marriages, yet those laws were all swept aside by the Loving decision in 1967. IE, if you can marry, you have no legal leg to stand on to deny that same right to gays.

Even the church itself sanctioned and performed gay unions.

http://anthropologist.livejournal.com/1314574.html

Grumpy

[joepistole]

joepistole

As I pointed out, there are several places "in the law" that say that "Marriage is one of the "basic civil rights of man,"" as quoted from the Loving v Virginia Supreme Court of the United States decision. So they do fall under the 14th Amendment "Equal Protection Under the Law" clause and gays do have that right to marry unless and until the state can provide an actual substantive reason why not(and prejudice is not a substantive reason, it's more a personal problem). And just like in Loving, the right existed in the Constitution even as the prejudice and bigotry of some in society(the majority in some states)fought to prevent the Lovings from excersizing that right. Obama's parents were in violation of some states' laws forbidding interracial marriages, yet those laws were all swept aside by the Loving decision in 1967. IE, if you can marry, you have no legal leg to stand on to deny that same right to gays.

You should read your references Grumpy, Loving vs. Virgina was a racial case, not a same sex marriage case. The federal courts have never held that the 14th Amendment extends to homosexuality.

http://en.wikipedia.org/wiki/Loving_v._Virginia

Even the church itself sanctioned and performed gay unions.

http://anthropologist.livejournal.com/1314574.html

Grumpy

Some churches are now recognizing gay marriages. But not all. And I fail to understand how this is relevant to the issue of legalized same sex marriages. We do not live in a theocracy.

[Stoniphi]

...I am by no means a legal scholar or professional, nor have I spent much time thinking about it...

Uh huh. :toungueincheek:

[joepistole]

Uh huh. :toungueincheek:

Are you a legal scholar? Obviously not. Have you been able to refute any fact or reason I have offered in this discussion? No. Have you been able to support your arguments with fact or reason? No.

And your side does have a very good cogent argument to support your cause. But no one in this thread has yet to hit on it. So instead of trying to engage in illogical argument, I suggest you do some research to support your position. And you shouldn't have to look far to find it.

[Balerion]

You should read your references Grumpy, Loving vs. Virgina was a racial case, not a same sex marriage case. The federal courts have never held that the 14th Amendment extends to homosexuality.

http://en.wikipedia.org/wiki/Loving_v._Virginia

I think perhaps you should take some of your own advice, and read the reference.

"Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

Loving v Virginia sets the precedent for marriage as a civil right protected against "unsupportable classifications" prohibited by the 14th Amendment. The fact that it is a racial case is irrelevant, since equality in race is not the foundation for the ruling, but rather the distinction of marriage as a basic right, and the protection of groups against discrimination in the 14th Amendment.

You say the federal courts have never held that the case was relevant to same-sex marriages, but that's misleading, because the federal courts have never been presented with it. Once they are (and they will with Prop 8) you'll see it come up. The proponents of these bans must provide a reasonable basis for defining marriage as a male-female union exclusively, and there's simply no way to do that beyond hoping the judges are all fundamentalist Christians and willing to judge based on Biblical law rather than Constitutional law.

[joepistole]

I think perhaps you should take some of your own advice, and read the reference.

"Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

Loving v Virginia sets the precedent for marriage as a civil right protected against "unsupportable classifications" prohibited by the 14th Amendment. The fact that it is a racial case is irrelevant, since equality in race is not the foundation for the ruling, but rather the distinction of marriage as a basic right, and the protection of groups against discrimination in the 14th Amendment.

This is why same-sex marriage bans will never stand up in court. The proponents of these bans must provide a reasonable basis for defining marriage as a male-female union exclusively, and there's simply no way to do that beyond hoping the judges are all fundamentalist Christians and willing to judge based on Biblical law rather than Constitutional law.

Here is your problem with this claim, show me where a court has upheld your claim that Loving v Virgina extends so same sex marriage. You cannot. Because the courts have not intrepreted Loving V Virginia as you have done. And until they do, you and yours are out of luck. Loving V Virginia ruled that racial discrimination in marriage was illegal per the 14th Amendment as the 14th Amendment prevents discrimination based on race.

Loving V Virginia was all about racial discrimination. It did not say children have a right to marry. It didn't say people can marry cows or cars. It didn't say all marriage laws are null and void because people have an absoulte right to marry anyone or anything at any time and without restriction. Loving V Virginia was clearly a case of race discrimination.

Until you and yours gets a federal court to rule in your favor with this argument, something that has yet to occur, your argument here is for naught. Your problem here is getting the courts to agree with you. If the courts agreed with your intrepretation of Loving V Virginia we would not be having this discussion. And as I have said, given the extremely conservative and activist judiciary, I don't see the courts agreeing with you and yours any time soon. There is a difference between same sex and race.

[Balerion]

Here is your problem with this claim, show me where a court has upheld your claim that Loving v Virgina extends so same sex marriage. You cannot. Because the courts have not intrepreted Loving V Virginia as you have done. And until they do, you and yours are out of luck. Loving V Virginia ruled that racial discrimination in marriage was illegal per the 14th Amendment as the 14th Amendment prevents discrimination based on race.

Loving V Virginia was all about racial discrimination. It did not say children have a right to marry. It didn't say people can marry cows or cars. It didn't say all marriage laws are null and void because people have an absoulte right to marry anyone or anything at any time and without restriction. Loving V Virginia was clearly a case of race discrimination.

Until you and yours gets a federal court to rule in your favor with this argument, something that has yet to occur, your argument here is for naught. There is a difference between same sex and race.

I edited my post too late to reach you, apparently, but your insistence that the courts "have never held it to be" is deceiving (and probably intentionally so) because the federal courts have yet to be presented with gay marriage cases.

Yes, Loving V was about racial discrimination. But, as I just showed you the ruling was based on two principals: One, that marriage is a basic human right, and Two, that groups may not be treated differently without sound cause. Loving V simply found that race is not a sound reason to prohibit a marriage between consenting adults. These principals are why the ruling in Loving V can apply to matters broader than racial discrimination. It set the precedent for these principals in the court.

And because the matters at the heart of Loving V are the basic right of marriage all humans have, and the right of equal treatment of every citizen providing there is no good cause to discriminate (such as in keeping driver's licenses out of the hands of 10-year-olds), the case is perfectly relevant to same-sex marriage.

[joepistole]

I edited my post too late to reach you, apparently, but your insistence that the courts "have never held it to be" is deceiving (and probably intentionally so) because the federal courts have yet to be presented with gay marriage cases.

And as I have said, given the conservative nature of the courts. I don't see them intrepreting Loving V as you have done.

Yes, Loving V was about racial discrimination. But, as I just showed you the ruling was based on two principals: One, that marriage is a basic human right, and Two, that groups may not be treated differently without sound cause. Loving V simply found that race is not a sound reason to prohibit a marriage between consenting adults. These principals are why the ruling in Loving V can apply to matters broader than racial discrimination. It set the precedent for these principals in the court.

And marriage was defined as one man and one woman. Loving V did not attempt to redefine marriage as between same sex couples or nullify all marriage laws in view of an absoulte right to unrestricted marriage.

use the matters at the heart of Loving V are the basic right of marriage all humans have, and the right of equal treatment of every citizen providing there is no good cause to discriminate (such as in keeping driver's licenses out of the hands of 10-year-olds), the case is perfectly relevant to same-sex marriage.

That is your opinion, an opinion that has not been upheld in the judiciary.

[NMSquirrel]

no matter what the arguments for or against same sex marriages, it all boils down to ppl legislating morality..

IMO,IOW, it is not moral to force someone into believing the same things you do.

the extreme of this is the Muslim extremist, it is the same thing...if it is possible to force the law into saying same sex marriages is wrong and illegal, then it is also possible for the Muslim extremist to enact sharia(sp?) law.

[Balerion]

And as I have said, given the conservative nature of the courts. I don't see them intrepreting Loving V as you have done.

They may not interpret Loving V as I have. But they should, because that's the correct interpretation. Or, they might interpret it as I have, but decide that tradition is a good enough reason to define marriage as being between a man and a woman.

And marriage was defined as one man and one woman.

DOMA is unconstitutional, and will crumble at the slightest push once these cases make it to federal court. This is why Bush attempted to extend it to prohibit same-sex marriages. And Obama has already declared it unconstitutional, instructing the DOJ not to defend it in relevant cases.

Loving V did not attempt to redefine marriage as between same sex couples or nullify all marriage laws in view of an absoulte right to unrestricted marriage.

The point is that it didn't need to redefine marriage as being between the same sex, it simply needed to set the limits of discriminatory power as it pertains to marriage. As I said, the principals involved in the ruling are not reliant upon race. The same principals would apply to any law attempting to ban interfaith marriage, or marriage between tall people and short people. The ruling states that unless there is sound reason to restrict their rights, you can't do so.

That is your opinion, an opinion that has not been upheld in the judiciary.

Well, the judiciary in California already ruled Prop 8 unconstitutional, so that's not entirely accurate. We'll have to wait and see how it breaks in federal court.

[joepistole]

They may not interpret Loving V as I have. But they should, because that's the correct interpretation. Or, they might interpret it as I have, but decide that tradition is a good enough reason to define marriage as being between a man and a woman.

DOMA is unconstitutional, and will crumble at the slightest push once these cases make it to federal court. This is why Bush attempted to extend it to prohibit same-sex marriages. And Obama has already declared it unconstitutional, instructing the DOJ not to defend it in relevant cases.

The point is that it didn't need to redefine marriage as being between the same sex, it simply needed to set the limits of discriminatory power as it pertains to marriage. As I said, the principals involved in the ruling are not reliant upon race. The same principals would apply to any law attempting to ban interfaith marriage, or marriage between tall people and short people. The ruling states that unless there is sound reason to restrict their rights, you can't do so.

Your quotation of the Loving V opinion stated marriage was necessary to the survival of the species. That clearly indicates the court was referring to male - female marriages. The court clearly was referencing marriage as an institution between a man and a woman and did not attempt to broadly redefine what is or is not a marriage. So in my view, you are really stretching Loving V in an attempt to support your position.

Well, the judiciary in California already ruled Prop 8 unconstitutional, so that's not entirely accurate. We'll have to wait and see how it breaks in federal court.

The California judicary is not the federal judiciary. Two, Prop 8 was an amendment to the California State Constitution to ban same sex marriages, not to recognized same sex marriages.

Since no one here has hit on this yet, I think the best argument in favor of same sex marriage is the "Full Faith and Credit" clause of the US Constitution. It is by the way, one of the reasons why DOMA is clearly unconstitutional.

http://en.wikipedia.org/wiki/Full_Fa..._Credit_Clause

[Balerion]

Your quotation of the Loving V opinion stated marriage was necessary to the survival of the species. That clearly indicates the court was referring to male - female marriages. The court clearly was referencing marriage as an institution between a man and a woman and did not attempt to broadly redefine what is or is not a marriage. So in my view, you are really stretching Loving V in an attempt to support your position.

Marriage is not required to conceive and bear children, so what the ruling is actually referring to is the importance of a stable household on the development of a child, and, by extension, the species.

The California judicary is not the federal judiciary. Two, Prop 8 was an amendment to the California State Constitution to ban same sex marriages, not to recognized same sex marriages.

One, you said judiciary, not federal judiciary. Two, what do you think Loving V was? It was a case attempting to overturn laws criminalizing miscegenation.

[Balerion]

And at any rate, Joe, the topic of the thread is "Should gay marriage be put to a vote," not "Will it, depending on the political slant of the current federal judiciary". And the answer to that is no, it should not. We've already determined that marriage is a civil right, with no reference to the sex of the participants, so it should no more be put to a vote than slavery should.

[NMSquirrel]

and, by extension, the species.

this is where i laugh at the controversy..

when two same sex couple get married where is the problem of them genetically transmitting their homosexuality?
to force them into a different sex marriage is only encouraging their transmission of any genetic propensity to give birth to other homosexual children.
(not claiming homosexuality is genetic,just arguing a certain logic)

[Balerion]

this is where i laugh at the controversy..

when two same sex couple get married where is the problem of them genetically transmitting their homosexuality?
to force them into a different sex marriage is only encouraging their transmission of any genetic propensity to give birth to other homosexual children.
(not claiming homosexuality is genetic,just arguing a certain logic)

I'm not sure there's any evidence homosexuality is hereditary. Genetic, sure, but this doesn't seem to be something that's passed down from father to son, mother to daughter. Or perhaps it only appears that way because only this generation and the last have been able to come out and not be treated by the general populous as degenerates.

Of course, the problem with your point is that people who want homosexuality outlawed also don't believe that it's genetic at all. They, by and large, believe it's a conscious decision based on kink and (I swear I've heard this said) a lack of opportunity with the opposite sex. So they risk nothing by saying gays should come back into the fold, so to speak, because there are no gay genes for them to pass on.

[spidergoat]

this is where i laugh at the controversy..

when two same sex couple get married where is the problem of them genetically transmitting their homosexuality?
to force them into a different sex marriage is only encouraging their transmission of any genetic propensity to give birth to other homosexual children.
(not claiming homosexuality is genetic,just arguing a certain logic)

Even if it is genetic, as I believe, the genes are carried by heterosexuals and homosexuals alike.

[NMSquirrel]

Even if it is genetic, as I believe, the genes are carried by heterosexuals and homosexuals alike.

point taken..some genes remain dormant and skip generations.