Is gay marriage unconstitutional?

Definitely.

I wouldn't say it like that, but it's in the balllpark.

By the letter of the Constitution, it can. It definitely cannot be done by any act of the Judiciary, which is why the alleged legality of "gay marriage" is a total sham.

Same thing as an individual right, but exercised by a state rather than an individual.

 

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Obergefell v. Hodges, was in fact, well within the legal jurisdiction of SCOTUS and outside of any morality claims. The ultimate question before court had to do with "licensing" which is a constitutionally permissible activity that most all states, counties and communities have, as a way to gain operating capitol to run their jurisdictions. The US Constitution, and the BoRs, all for and, in many respects encourages, the expansion of liberty but will weigh that against any 'possible harm' such an expansion of liberty might cause.....coming down on the side of the prevention of harm.

 

I'll take a stab.

Starting with the second question since it's a little easier... I think when he said "states rights", it was a bit of a misnomer, but a very common and accepted one. He could just as well have said"states powers", or more specifically, "legislative power". People often use the words "liberty", "power", and "rights" synonymous, and it's only necessary to distinguish when dealing with very precise and nuanced characteristics of each.

Regarding the first question, it's very hard to answer such a broad question...There are likely many reasons, with many different rationals, some more or less reasonable than others. Law is very nuanced and fuzzy at times, and people often have very strong personal and religious feelings on the subject... both of those reasons lend itself to extensive interest and debate on the subject.

I would start first by saying that there are likely very few actually arguing that "gay marriage is unconstitutional" (there are those who argue, for example, that it is unconstitutional because it violates "natural law", but I'll leave that for a philosophical discussion and not a constitutional law discussion). The constitution doesn't forbid same-sex marriage, thus it isn't unconstitutional. However, that doesn't mean the constitution requires it, and that's what most of the arguments are about... about who has the power to define marriage, and what (if any) limits or requirements there are in that definition.

Answering those questions can lead to some complicated debates on subjects ranging on many topics, including:

• The purpose for marriage (courts need to understand the presumptive purpose for states defining marriage in order to analyze whether or not it is consistent with or in violation of the constitution or federal law)
• The application of equal protection claims (It's actually pretty hard to get a court to rule in your favor based on the constitutional requirement for equal protection... the burden of proof is most commonly on the person or group seeking relief, and not on the state. A description of how an equal protection case is analyzed can be found here: http://blogs.findlaw.com/law_and_life/2014/01/challenging-laws-3-levels-of-scrutiny-explained.html)
• Constitutional and legislative limits on jurisdiction and legislative power (such as whether or not federal courts have any jurisdiction on domestic issues, which are most commonly state affairs)
• The mental health and fitness of homosexuals (One way one might try to defeat an equal protection claim is by saying the exclusion of same-sex couples serves a legitimate state interest, such as not encouraging what some might argue is a damaging mental state, or that this mental state does not serve the same legitimate state interests that are served when the state sponsors marriage for opposite sex couples)
• Social consequences (here we start going into hypotheticals about the asserted dire consequences of re-defining marriage to include same-sex couples. Again, these arguments attempt to undo equal protection claims by saying the restriction serves a legitimate state interest, such as increased divorce rates, increased number of children born out of wedlock, and other such asserted consequences)
• The "slippery slope" of judicial mandates and any consequences that may have (does the basis with which equal protection is granted for same-sex couples mean that we have to accept other things, like marriage to children, marriage to laptops, and marriage to horses?)
• Religious freedom (which includes arguments for same sex marriage based on the free exercise of religion by those who believe in same-sex marriage, and arguments against it on the basis that allowing it would violate the religious freedom of others).

The above can lead to some long and complicated discussions, which leaves plenty of room for people to argue, misunderstand, and disagree. There are literally dozens of courts that have analyzed each of the above questions, and then some, virtually all of which have sided in favor of requiring Equal Protection. That, of course, doesn't mean they're right, but I hope it means that you at least understand that the decision which was made wasn't made lightly or without consideration for the constitution and state powers. Again, if you're really curious, I'd encourage you to read some of the judicial opinions, and if you have any questions or disagreements, people here are always willing to discuss. I personally recommend the opinion from the district court in Utah and of course the supreme court decision itself, but of course I'm a bit biased myself... so I encourage you to explore ideas from elsewhere as well.

But if you want the text of those opinions, the case from Utah is here: https://scholar.google.com/scholar_...kitchen+v.+herbert&hl=en&as_sdt=6,29&as_vis=1
And the supreme court's decision can be found here: http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

 

You are welcome! Are you saying that you are conservative on social issues such as same sex marriage and that your peers are also? I'm curious because that would run contrary to the statistics that I'm seen that show wide spread support of LGBT people among young people.

BTW, there are certain people here who do not have a clue as to what they are talking about and base their "legal opinions" strictly on what their bigotry dictates. I hope that you are smart enough to be able to distinguish between your personal opinion and beliefs with respect to the issues, and the reality of the law.

 

Interestingly enough, I grew up in NYC, a stones throw or Subway ride from Manhattan, 15 minutes worth, my parents were conservative, so were most people in the traditional church we attended, I was much more "liberal" in all of my opinions, I made up my own mind at the early age of 9 about lots of stuff, hippies, gay people, I also kept these opinions to myself because expressing them seemed a poor option.

The thing that convinced me most at that time was the excommunication of a church member for voicing pro gay opinions on SSM, and I was in agreement with him.

Lots of my young friends believed whatever their parents believed, I never did, I had my own ideas, so did my best friend, we spent lots of time together over the years discussing those issues.

 

PS: Read the Obergefell decision, particularly Justice Kennedy's majority opinion. I'm willing to bet that not a single person who rails against it and claims that it was a bad or inappropriate decision has done so. And read the Constitution.

 

Would you mind explaining why you think it is unconstitutional?
Thanks

 

Yes, I meant that most of my friends share similar beliefs as me. Again yes, most of my peers are skeptic of gay rights. Most of us were brought up religiously, and thus believe everything we were taught. To tell you the truly, I was anti-gay. However that does not mean I will remain that way. I am coming to the realization that there is almost no good arguments against gays other than religion. So I might need to change my perspective on that issue. i guess you cant really call that conservative. But, I do have other conservative points of view on other issues such as abortion or Immigration.
You also stated the widspread young LGBT supporters. I won't deny this. I would say that 3/4 of my school and people I know are pro gay. The other quarter is against.

 

Well, there are many opinions, but the one that ultimately matters is the majority opinion issued by the Supreme Court.

The question I think your quoted article means to raise is not so much whether "gay marriage is against the Constitution", but one of whether or not the Court had authority to decide this specific issue. Other posters have already identified one of the chief failings of the article: its focus on the Bill of Rights while ignoring the 14th amendment, which the Court references several times in their ruling.

http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

When you read the ruling (and you really should), you will find that the Court lays out in some detail how it has arrived at a finding that the due process and equal protection clauses of the Fourteenth Amendment apply, based on precedents from earlier rulings that establish marriage as a fundamental right, and the burdening of that right by both earlier laws since overturned and similarly in the case before them here.

Is it a state choice whether or not you get to breathe? The Constitution doesn't mention that, either. Funny that the article claims a focus on the Bill of Rights, but ignores the 9th in favor of the 10th:

1) It's not easy to do.

2) It's not necessary, because same-sex marriage is not fundamentally unconstitutional; the fact that the Constitution makes no mention of it directly means that the constitutionality of same-sex marriage is a matter of how one interprets the law, which the Court has done in settling the issue, regardless of some people wishing it to remain unsettled.

 

Thank you for sharing and for your honesty. It's good that you can see that there is no good, secular argument against gay rights. You are obviously intelligent enough to have not been sucked into the quagmire of dogma and rhetoric , or to be bamboozled by the arm chair lawyers who think that they know a whole lot more than they do. Some have some very strange ideas and theories that boarder on desperation.

I will add that as far as I'm concerned, there is no good religious argument against gay rights either, because no one should have to live by anyone else's beliefs. In addition, as you probably know, there is considerable disagreement within the Christian Religion ( You are Christian ???) as to what prohibitions on homosexuality-if any-are really required. If I'm not mistaken, denominations have split on the issue. And according to stuff that I've read, even those who think that homosexuality is wrong have come to see that other aspects of their faith such as treating others as you would want to be treated takes precedence.

Christians and other religious people should be free to practice their religion, to preach it, and to live according to the tenants of their faith TO THE EXTENT that doing so does not infringe on the rights of others. That is about all the religious talk that I have in me since I'm somewhere between an Agnostic and an Atheist

Your assessment that about 3/4 of your school is pro gay rights is pretty much in keeping with the percentages that I have seen among you people. In addition, I even know a lot of old folks like me who support gay rights. Times are changing. I hope that you will be on the right side of history. Keep in mind also that you do not have to give up on your conservativism to support gay rights. Many people who are fiscal and political conservatives are liberal on social issues. It has even been said that to support the removal of legal restriction on gays IS CONSERVATIVE because it is smaller and less intrusive government.

Fell free to ask any other questions that you have and be leery of who answers them.

have a good evening

 

Obergefell is fraudulent for at least two reasons:

1. Nowhere in the Constitution is the federal government empowered to define marriage, so under 10A that power is reserved to the several states. You'll be told, if you haven't been already, that 14A applies; but that would require "same sex marriage" to be a right, privilege or immunity, and it isn't, because "SSM" is an absurdity. You might as well sue your state for failure to issue an Astronaut License so you can flap your arms and fly to the Moon, as sue it for failure to issue a "SSM" license.

2. The ruling presumes to codify into federal law an absurdity, which flies in the face of the Preamble, which lists among the objectives of the Constitution the establishment of Justice, which is of course inimical to such insanities as "SSM".

You don't need any arguments, any more than you need them to justify opposition to pedophilia. All you need is the sense you were born with - which of course must be abandoned if one is to believe homosexuality is benign.

 

SSM is an absurdity, based on what? The rights of the people can't be infringed upon by the the government, whether it is a state or federal(we all know they are with certain laws, but that's another argument for another day). Under equal-protection clause, if a state recognizes marriage and affords its benefits, it can't discriminate against same-sex couples. Couples have a fundamental right to enter into a social contract(marriage) and that cannot be take away by government. Simple as that. You can not agree with same-sex couples getting married all you want, but no government should be infringing on the rights of those couples.

 

Sanity, obviously.

Again, "SSM" isn't a right, it's an absurdity.

It's not the state doing the discriminating, but the Author of marriage.

Be that as it may, it's not a contract homosexuals are interested in. What they're interested in is pretending to be married and forcing everyone around them to acknowledge that pretense as a reality.

Doesn't matter whether anyone agrees with it, because no two men or two women ever got married or ever will.

 

I'll try question two. None of this is new territory. The rationale for the recent decision was a case decided decades before, when a black man and white woman were legally married in one state and moved to Virginia where the marriage contract was denied as valid. You can well imagine how a former confederate state would react to any decision that require it to watch black men marry white women with a Virginia stamp of approval, and raise children together. They could barely stomach the idea of that same man drinking out of what was the whites only water fountain! An entire generation of bigots had to die out for the rage to dissipate. I don't doubt that had there been blogging and You-tube, in the mid twentieth century, the racists would fill both media with increasingly creative and bold 'constitutional' arguments to justify their segregationist stance.

Their whole worldview and lifestyle was under threat. What they learned from their mother, father, beloved grandmother, their teachers, the local mayor and senator, and the pastor and Sunday School teacher was being turned upside down by this idea of equal protection under the law for the 'coloreds' They were not likely to be gracious in defeat and accept a legal argument with class and decorum.

The better question for you to ask, is whether you aren't a little naïve to think those blogs and videos would die a quick and quiet death when the homophobia behind the bans on same sex marriage had not?

 

Well you convinced me

Entering into a social contract is a right. Guess what marriage is?

Nope, it's the state. The state, as long as it's involved in marriage, can't violate the Equal-protection Clause, which is what it was trying to do. If you want to get into the history of marriage and who came up with the idea, you're going to be disappointed in what you find.

Pretending? No, pretty sure what they want is the right to be able to be married to one another and to be able to gain said benefits that the states grant to married couples. You can hate it all you want, but the reality is, same-sex couples should have the ability to get married and gain the benefits that states grant to couples who choose to get married.

Nope, pretty sure plenty of same-sex couples have been married, as a matter of fact, I know a few. Just because it disagrees with YOUR idea of what marriage is, doesn't make their marriage false.

 

A contract between one man and one woman, obviously.

You have no idea what the hell you're talking about. And you like it that way...

...and you can bloody well stay that way for all I care.

 

Haven't you noticed, that no matter the facts surrounding gay marriage or homosexuality in general... many will cling to their anti-gay 'beliefs' about it?

So, I think the best LGBT and those who advocate for them can do, is to elect compassionate people that will pass/support laws ushering this society more and more toward equality.

 

In the United States it is between a couple- regardless of gender.

In many countries around the world it is between a man and many women.
And in others it is between a man and a girl who has no legal authority to enter into any contract.

 

Apparently, something was lost on you, so let's break it down. Two people should be able to enter into this social contract called marriage, no matter what. Since the states are in the business of marriage and give benefits to those that are married, they can't discriminate against same-sex couples. I think it's a pretty simple thing that you can't seem to grasp.

I do like that I apparently have no idea what I'm talking about even though most of my responses are based on how the US constitution is laid out and how it has been applied in varying degrees over time and your opinion on it seems to be based more on an opinion about same-sex couples and not anything in dealing with case law or readings of the US Constitution. It's really hard to take you seriously when one of your responses to me was "Sanity, obviously".

 

You're looking for answers in all the wrong places my friend. This is the kind of faux legal blathering that I warned you about. This dude has deluded himself into believing that the only rights that we have are specifically enumerated in the Constitution, he does not recognize federal supremacy, and discounts the impact of the 14th Amendment. I compiled this a while back:

 

Gay marriage isn't un-Constitutional but I think the better question is was what SCOTUS did Constitutional?

I understand the 14th Amendment reasoning although I don't entirely buy it in this case and I have no problem with gays getting hitched but I do have some problems with the way SCOTUS and a couple of the lower courts dealt with this.

 

Go on then. Please elaborate,

 

Here is more on rights not enumerated:

 

http://www.thenewcivilrightsmovemen...ority_opinion_on_marriage_to_remember_forever


"No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right."

 

If this were strictly a 14th Amendment issue we would have had gay marriage nationwide a long time ago but those cases weren't heard until recently so it wasn't that simple. Obergefell had several cases rolled into it but the two main issues were gay marriage bans and reciprocity.

Obergefell was already married, his issue was reciprocity because Ohio wouldn't recognize his Maryland marriage. I think DOMA was still fully in effect at that time which complicated matters of reciprocity but it wasn't in effect when the Obergefell decision was made. Ruling that all states must recognize couples who are legally married is fine by me, I was married in California but because I'm straight every state recognizes my marriage, to not do so for gay couples is clear discrimination however SCOTUS went way beyond that by ordering all states to issue gay marriage licenses. I think that was wrong because they did the very thing they said couldn't be done when they overturned part of DOMA which is define marriage. I understand some people will disagree with me on whether or not what SCOTUS did was actually defining marriage but either way their order to issue licenses was essentially legislating from the bench and was in my opinion a massive overstepping of their bounds because ordering reciprocity would have accomplished the same thing without infringing on the state's ability to define marriage.

The Marriage bans were clearly un-Constitutional, you can't write laws in this country discriminating against a specific minority group, once these bans popped up it was only a matter of time until they were struck down but SCOTUS should have just said the bans were un-Constitutional and kicked this back to the states to re legislate but they didn't do that, they took it upon themselves to legislate from the bench.

Using the logic SCOTUS used the federal government can do anything they want and I suspect the reason they didn't focus exclusively on reciprocity is because of the effects that would have had in other areas. How long do you think it would have been before they had to rule that anyone licensed to conceal carry in one state can now conceal carry in all 50 states? I'm not a lawyer but I'm guessing any licensing issue could have been affected by that and I think they did this the way they did specifically to avoid setting a precedent they did not later want to deal with which means politics played a huge part in what should have been a fair and impartial procedure.

Once again, I'm not a lawyer, just my take on it.