Is gay marriage unconstitutional?

Discussion in 'Gay & Lesbian Rights' started by MusicianOfTheNight, Apr 24, 2016.

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  1. MusicianOfTheNight

    MusicianOfTheNight New Member

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    Please can we keep this as unbiased as possible?
    I found this on a website:



    “The Constitution does not say it is against the law to rob a bank. The Constitution does not say it is against the law to murder your neighbor. The Constitution does not say it is against the law to sell or use drugs. It does not say anyone has to believe in God or be a Christian. It does not say anything about marriage, nor does the Bill of Rights.

    The Bill of Rights does not say these things because these are moral issues, and the Bill of Rights was not written to address moral issues. The Bill of Rights was written to address political freedom for the people and to set limits of power for a federal government. I cannot stress enough that the Constitution and the Bill of Rights are political documents, not a moral ones.

    Moral issues are covered by an individual’s conscience and religion and by laws passed by local or state communities and can change as the moral culture changes, for better or for worse. What I mean is, from the federal government’s perspective, moral issues are not addressed in the Constitution or the Bill of Rights, and ergo those issues are off limits to the federal government.

    Over time, as morality changes, it is the laws enacted by the people at the community, county, and state level that are intended to handle changes in moral values. If the people of California vote to approve or ban gay marriage, the Constitution does not give the federal government any authority to intervene for or against it. Marriage is not a political freedom issue. Likewise, the federal government has not been granted the power to impose itself upon any state policy regarding murder, robbery, drugs, or any other issue of moral law.

    Therefore it is given:

    The Bill of Rights was written to protect the states’ and the people’s political freedom from a federal government, and the Bill of Rights is not a moral values document.”

    Before any of you start yelling at me, please think about what our Constitution is and does. It defines our freedom and protects us from a tyrannical government. That is, if we follow that great document.

    So, what does our Constitution say? It says, via the Tenth Amendment, that the States and the People of those states should decide what they want to do about gay marriage without any interference from the federal government.

    C Howard Diaz"



    It comes from a book called "A Charter of Negative Liberties"

    So, is the supreme courts ruling of gay marriage against the Constitution? The Constitution says nothing about gay rights-so that would make it a state choice, right?

    Also, if it is in fact unconstitutional, why can't an amendment be made to the Constitution to make gay marriage legal?

    I apologize if these questions are dumb, but I would really appreciate some various opinions. Thank you.
     
  2. ProgressivePatriot

    ProgressivePatriot Well-Known Member

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    Of course the constitution does say that murder and theft are against that law. The Constitution lays out a framework for our system of laws and government and provides protections for individual rights against the tyranny of government. However, it is perfectly legitimate for the government to make murder and theft illegal and no one other than an anarchist is going to suggest that doing so is not constitutional. There is clearly a compelling government interest to prevent murder and theft to the extent possible.
    On the other hand the high court has rightfully found that state laws prohibiting same sex marriage are in fact unconstitutional because there was not rational basis leave alone a compelling government interest, and because the violated the equal protection clause of the 14th Amendment. While you are correct in saying that the Constitution is not a “ moral code” it is equally true that the government at any level should not be in the business of legislating morality or individual behavior that is not detrimental to others or to society as a whole. Yet, that is exactly what the states were doing when they passed those laws restricting marriage to a man and a woman.

    Finally, the 1oth Amendment does not trump the 14th , and all states rights must be understood and exercised within the parameters of the entire constitution and it’s amendments. There, I cut through all of this convoluted clap trap and made sense out of it for you. Say thank you.
     
  3. Johnny-C

    Johnny-C Well-Known Member

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    Exactly. That was all very well stated.
     
  4. Colombine

    Colombine Well-Known Member Past Donor

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    It's not a question of "moral law" that's a false framing. It's a question of contract law and the SCOTUS found it was unconstitutional to withhold access to the marriage contract based on the gender make-up of a couple when they are otherwise similarly or IDENTICALLY suited to other couples already granted such access when there was no, even merely, rational basis, to do so.

    If people want to add layers of "morality" to their individual marriages, which are outside the purview of the law, they are free to do so. However they are not free to impose those layers onto the marriages of others.

    BTW, if you "find things on a website" you should post a link so that members can check the veracity of the source.
     
  5. JeffLV

    JeffLV Well-Known Member Past Donor

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    As stated above, the argument ts you gave seem to be focused in the first 10 amendments, and oddly doesn't mention the rest of the Constitution which was the basis of the Supreme courts decision.

    The federal governments ability to dictate morality is and should be limited... but the constitution does outline powers and responsibilities for the government, and limitations of power on state government. While the constitution doesn't mention marriage, it does mention a limit of power on the states to enact las that violate equal protection and due process. The supreme court can't necessarily require gay marriage, but they can require that if the right of marriage is given, it is given to all similarly situated parties under a standard of equal protection review.

    One nice thing about supreme court cases is that the justices publish their rational behind the decision which can be evaluated by others. I'd encourage reading that document for the basis of the decision, and if you have specific questions or concerns about the basis given, bring those up for discussion.
     
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  6. ProgressivePatriot

    ProgressivePatriot Well-Known Member

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    Thank you but I screwed up the first sentence. It should read "Of course the constitution does NOT say that murder and theft are against that law. It's all about what the government can and cannot do
     
  7. ProgressivePatriot

    ProgressivePatriot Well-Known Member

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    EDIT Of course the constitution does NOT say that murder and theft are against that law.
     
  8. Polydectes

    Polydectes Well-Known Member

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    To look at this objectively we must first understand that there are no gay rights. That's hyperbole. There are civil rights.

    Same sex marriage would be a civil right issue and not a gay rights issue.

    And if go further and say yes the constitution does indeed forbid states from restricting marriage based on sex.


    From the fourteenth amendment. Section 1
    "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;"

    Are people in same sex couples citizens? Is marriage a privilege?

    The answer to both those questions I believe is yes.
     
  9. yardmeat

    yardmeat Well-Known Member

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    IMO, federally legalizing gay marriage satisfies the 10th Amendment. It gives the power to form contractual relationships to the people. Too many States rights folks ignore the last four words of the 10th Amendment.

    No, not necessarily. I'd rather it be a personal choice than a state choice, and federally legalizing gay marriage does just that.
     
  10. Johnny-C

    Johnny-C Well-Known Member

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    Yeah, I read it wrong. I know the general character of your posts intuitively and took the proper meaning. :)
     
  11. SFJEFF

    SFJEFF New Member

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    First of all- who you are quoting doesn't ask whether 'gay marriage is unconstitutional'- he opposes the Supreme Court ruling that prohibits States from prohibiting same gender marriages.

    The first problem is that the author ignores what the Supreme Court actually said- what their ruling in Obergefell said- and appears to be unaware of what the Supreme Court said.

    The basis for the ruling was the 14th Amendment- and it's requirement that all laws- including the laws of the state- provide equal protection to all citizens.

    The rest of the author's rant is frankly immaterial since the Supreme Court ruled based upon a part of the Constitution he doesn't even acknowledge.
     
  12. ProgressivePatriot

    ProgressivePatriot Well-Known Member

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    “I see from your profile that you are a young person. While it’s apparent that you have a lot to learn about these things, take heart because there are much older people who you will encounter who know as little or less. Furthermore, unlike you, they don’t know or won’t admit how little they know and are often blinded by prejudice and ideology. I hope that will not be the case with you. I will try to help as I’m sure others here will, but you have to pay attention and keep an open mind. There were a few points in your post that I failed to cover innitially…….
    The source title is very telling. "A Charter of Negative Liberties" (For which you should have provided a link)“Negative liberty “ which is freedom from external restraint on one's actions. I think that is what conservatives push for as long as they are the ones being unrestrained, but are quite willing to impose restraints on others when it comes to matters of morality. At the same time, the accuse liberals of adhering to the concept of positive liberty- the believe that we can do whatever we want when we want to- which can’t be further from the truth.

    Regarding your suggestion that the ruling is against the Constitution, No it is not against the constitution. States right must be exercised in accordance with the entire constitution. They are not absolute. If the court exceeded their authority in Obergefell, they also exceeded their authority in Loving V. Virginia

    You asked why not an amendment? An amendment could have been passed either to legalize same sex marriage or to prohibit it but the political ability to get either done was not there. However, it was not necessary to pass an amendment to legalize it because, as you know, the constitution is silent on marriage and same sex marriage was never unconstitutional. When there is a political impasse on a critical issue, it is necessary and proper for the courts to step in.
     
  13. ProgressivePatriot

    ProgressivePatriot Well-Known Member

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    Thanks again!
     
  14. MusicianOfTheNight

    MusicianOfTheNight New Member

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    Sorry, I thought the book title would suffice: http://www.suanews.com/constitution/gay-marriage-what-does-our-constitution-say.html
     
  15. MusicianOfTheNight

    MusicianOfTheNight New Member

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    Thank you very much for your information! I never had any opinions on gay rights, until a few weeks ago when I found that article. I got interested, so that is why I joined this forum. I will try to stay as open minded as possible. The point of the original post was to gain insight and information on the Constitution and the rights it grants. However, there still remains a few mysteries to me:
    1) Why are there still so many articles and videos on why gay marriage is unconstitutional? You just gave me an almost perfect answer.
    2) What actually is a state right?

    Thanks again!
     
  16. tkolter

    tkolter Well-Known Member

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    Its not a complicated issue as long as government recognizes and gives benefits to married couples in each State and Territory inside the nation you cannot discriminate against any citizen who wishes to marry regardless of gender pairings as long as all other legal aspects apply the same. The only way to take the 14th Amendment issue off the table is to have all States and Territories eliminate marriage as a government issue resigning the status to private contracts and religious marriages unsanctioned by any government body that would then remove the SSM issue fully.
     
  17. Woolley

    Woolley Well-Known Member

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    Bravo to you for having the courage and desire to come here to explore your opinions and ideas. One thing that I noticed was the claim that the constitution is not a moral document. It most certainly is moral. In fact, the entire basis for our freedom is a deep sense of moral commitment to humanity even if we fall short of that goal. Is freedom of speech a legal construct alone or does it reflect a moral judgement? All forms of government reflect a moral decision by those framing it, what else dictates our desire to be fair, just and compassionate?
     
  18. SFJEFF

    SFJEFF New Member

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    There are so many articles because a) people feel strongly about it and b) anyone can post stuff on the internet.

    States have the responsibility(right) to regulate many things- including marriage.

    But such regulations/laws must be constitutional.

    Someone else mentioned it but I will do so again- if you want to understand this stuff- go right to the ruling- look up Obergefell and read the ruling- and the dissent- much more reliable than any of our interpretations of what they said.
     
  19. DoctorWho

    DoctorWho Well-Known Member

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    Actually, many people are confused about what a Right is, States do not have "Rights" States have power and authority to enact legislation and to enforce laws.

    The people have Rights, for example, the First and Second Amendments are Rights granted the People.
     
  20. jackson33

    jackson33 Well-Known Member Past Donor

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    In short, there was nothing in the Constitution directly referring to Gay Rights or in fact murder. However the Colonies and then States, after 1776, did have laws which by inference (all else left to the States), did have laws and Sodomy was illegal, with different punishments in each of the 13 Colonies and in fact all the States, off course murder or other felonies then illegal.....


    Hello SFJEFF, haven't seen you around lately...
     
  21. greatdanechick

    greatdanechick Well-Known Member

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    Marriage may not be specifically called out, but where this became a constitutional issue was when gay couples sued states because of infringement of the 14th amendment. It guarantees every person the right to life, liberty and the pursuit of happiness. The law suits said those rights were being denied to gay couples because we were not being allowed to marry. Enough judges agreed that legal precedent was set state after state, which is why the Supreme Court finally had to make the call. So yes, it is a constitutional right to be able to get married regardless of sex, assuming you consider marriage part of the pursuit of happiness... haha which I realize many married people wouldn't.


    Sent from my iPhone using Tapatalk
     
  22. ProgressivePatriot

    ProgressivePatriot Well-Known Member

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    You’re welcome. To try to answer your questions, regarding the first one, there are a fair number of people out there who are bigots and have adopted a warped and inaccurate interpretation of the constitution to justify their view that LGBT people should not have equal rights. They are motivated by religious zealotry and/or by fear of a changing society that they don’t understand and can’t accept. Others, I suspect are driven by fears and doubts about their own sexuality and have to rail against the legalization of same sex marriage to reassure themselves that they are not gay or bisexual. And, there are those- particularly the politicians who are behind that propaganda - who may not even believe their own bovine excrement but feel that they must pander to the right wing bigots and fear mongers.

    However, please know that you cannot judge the level of opposition to marriage equality by what you see on the internet or by the rhetoric that has been spewed by a number of the Republican presidential candidates. In the real world, most people are either unconcerned or supportive of gay rights and same sex marriage (SSM). Here in New Jersey, SSM became reality a couple of years before Obergefell. It was not even a topic of conversation and I suspect most people did not even notice.

    I see that in addition to being a high school student, you describe yourself as being conservative and from New York. New York State? Rural or urban? In any case, if your conservatism extends to social issues, I have to suspect that you are at odds with many of your contemporaries, especially being in the north east.

    Your question about states’ rights is more complicated. I addressed it to some degree in my previous posts. You need to read history, especially the history of the civil war for starters. Here are some links that might help you better understand the Constitution which you should also read-many times.’

    http://www.usconstitution.net/constquick.html

    http://www.scotusblog.com/

    http://www.scotusblog.com/2015/06/i...e-bans-on-same-sex-marriage-in-plain-english/
    Read this stuff! Good luck!
     
  23. ProgressivePatriot

    ProgressivePatriot Well-Known Member

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    More of your irrelevant gibberish. Laws against sodomy were tossed out years ago by SCOTUS and sodomy has nothing to do wit the issue of marriage equality. Can you actually offer anything that makes sense and is on topic?
     
  24. MusicianOfTheNight

    MusicianOfTheNight New Member

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    Thanks again for you helpful insight!
    Yes, I come from NY state (Rural). Also you mentioned if I am at odds with my contemporarys. If I am understanding the question correctly, I would say no. I was brought up quite conservative, even though my parents have almost opposite views. Most of my friends share similar political beliefs. There are however countless people that I know do not. Also thank you again for the links, I will check them out when I have more time on the weekend.
     
  25. ARDY

    ARDY Well-Known Member Past Donor

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    Yes
    Btw,
    One supposes that the supreme court considered... And rejected the arguments presented in the original post. It is likely that research into that ruling would give elaborate detail on the basis for the ruling
    Unless you start from the perspective that the person writing the article knows more about constitutional law than the ussc. The typical claim of such people being that the courts are legislating from the bench. And of course exactly similar objections were raised concerning equal rights, marriage between races, etc
     
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