# Are they now out of arguments for gay marriage ban? **URL:** \ **Category:** Great Debates\ **Created:** [March 15, 2005, 7:02pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680 "2005-03-15T19:02:32Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![50million](https://avatars.discourse-cdn.com/v4/letter/5/9fc348/32.png) [@50million](https://boards.straightdope.com/u/50million)\ **Post date:** [March 15, 2005, 7:02pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/1 "2005-03-15T19:02:32Z")
[http://abcnews.go.com/US/wireStory?id=581839](http://abcnews.go.com/US/wireStory?id=581839) I haven’t seen this topic dicussed in GD for a while and figured that this ruling was a good enough reason to bring it up. Jist of the ruling is, "Can’t discriminate based on procreation arguments, can’t discriminate based on tradition, “seperate but equal” isn’t good enough, etc. " So, are there any other arguments that can be used for a gay marraige ban? Please limit your attempts to reasonably rational, logical, and defensible arguments because they will be analysed. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 15, 2005, 7:06pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/2 "2005-03-15T19:06:22Z")
> [@50million](#): > > So, are there any other arguments that can be used for a gay marraige ban? The will of the people. I really think it’s a mistake to make this a constutiional issue, because the sentiment across most of the country is such that if it takes a constutional amendment to ban SSM, either at the state or federal level, then that’s what will happen. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 15, 2005, 7:15pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/3 "2005-03-15T19:15:36Z")
> [@John Mace](#): > > The will of the people. Segregation, 5/8th of a person, and anti-miscegenation laws were all the will of the people too. Doesn’t make it constitutional. > [@JohnMace](#): > > I really think it’s a mistake to make this a constutiional issue, because the sentiment across most of the country is such that if it takes a constutional amendment to ban SSM, either at the state or federal level, then that’s what will happen. Which is a very sad comment about the people who would change the constitution so they can enshrine their bigoted hatred of gays. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 15, 2005, 7:33pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/4 "2005-03-15T19:33:36Z")
> [@Hamlet](#): > > Segregation, 5/8th of a person, and anti-miscegenation laws were all the will of the people too. Doesn’t make it constitutional. “5/8th of a person” was never constitutional, but “3/5ths of a person” absolutely was. Anti-miscegination laws were never part of the constitution, but they could have been made part of it had it come to a vote. > [@](#): > > is a very sad comment about the people who would change the constitution so they can enshrine their bigoted hatred of gays. Sad, but a fact that shouldn’t be ignored. How many times have anti-SSM laws or amendments come to a vote in the US and NOT been passed? I can’t think of one instance. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 15, 2005, 7:44pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/5 "2005-03-15T19:44:37Z")
> [@Hamlet](#): > > Segregation, 5/8th of a person, and anti-miscegenation laws were all the will of the people too. Doesn’t make it constitutional. Yes, but if the will of the people is expressed in two-thirds of the House and the Senate proposing an amendment to the constitution that forbids same-sex marriage, and three-fourths of the states ratify this, it will be perfectly constitutional. > [@](#): > > Which is a very sad comment about the people who would change the constitution so they can enshrine their bigoted hatred of gays. It’s not wise, I grant you. But it’s a predictable backlash against the spectre of the courts making laws not supported by the will of the people. How many states now have anti-SSM constitutional amendments? ---
**Author:** ![rjung](https://avatars.discourse-cdn.com/v4/letter/r/45deac/32.png) [@rjung](https://boards.straightdope.com/u/rjung)\ **Post date:** [March 15, 2005, 7:53pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/6 "2005-03-15T19:53:42Z")
> [@Bricker](#): > > It’s not wise, I grant you. But it’s a predictable backlash against the spectre of the courts making laws not supported by the will of the people. Fortunately, the nation [doesn’t believe in blind submission to majority rule.](http://usinfo.state.gov/products/pubs/principles/majority.htm) Unfortunately, the bigots will continue to ignore that. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 15, 2005, 7:56pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/7 "2005-03-15T19:56:19Z")
> [@John Mace](#): > > How many times have anti-SSM laws or amendments come to a vote in the US and NOT been passed? I can’t think of one instance. The MA proposed amendment doesn’t have enough support even to get on the ballot; does that count? > [@Bricker](#): > > But it’s a predictable backlash against the spectre of the courts making laws not supported by the will of the people. As were Jim Crow laws a similar backlash. ---
**Author:** ![Binarydrone](https://avatars.discourse-cdn.com/v4/letter/b/3da27b/32.png) [@Binarydrone](https://boards.straightdope.com/u/Binarydrone)\ **Post date:** [March 15, 2005, 8:02pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/8 "2005-03-15T20:02:35Z")
> [@Bricker](#): > > …But it’s a predictable backlash against the spectre of the courts making laws not supported by the will of the people. > > How many states now have anti-SSM constitutional amendments? Can you clarify this for me? I keep hearing about “activist judges” and “legislation by judicial fiat” and the like, but don’t really quite get it. Aren’t the judges simply making rulings on the constitutionality of specific laws and the like? Isn’t that their job? ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [March 15, 2005, 8:13pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/9 "2005-03-15T20:13:39Z")
> [@Binarydrone](#): > > Can you clarify this for me? I keep hearing about “activist judges” and “legislation by judicial fiat” and the like, but don’t really quite get it. Aren’t the judges simply making rulings on the constitutionality of specific laws and the like? Isn’t that their job? For some reason, Rick, who used to be very competent at explaining this stuff, has suddenly decided to take refuge in the “appointed judges making laws” canard, which he _knows better_ than to do. ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [March 15, 2005, 8:14pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/10 "2005-03-15T20:14:26Z")
Wouldn’t that also mean _Brown vs Board of Education of Topeka, KS_ was also "judicial activism? ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [March 15, 2005, 8:25pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/11 "2005-03-15T20:25:20Z")
> [@Guinastasia](#): > > Wouldn’t that also mean _Brown vs Board of Education of Topeka, KS_ was also "judicial activism? It has been so argued on numerous occasions and there are still people who are mad about it for that reason. There are at least three ssues here: 1. Is Same Sex Marriage right or wrong? 2. Should the issue be decided by courts or legislatures? 3. What happens if some majority of people feel that the court decisions are improper and force through a Constitutional Amendment banning SSM? The first is an ethical question. The second is a philosophical issue. The third is an issue of political strategy. Far too many people who champion one decision or another on issues 1 and 2 fail to recognize that a “victory” for the courts on issue 2 could lead to a backlash that could result in a “loss” on issue 3. Keeping a recognition of the actual issues separate just might permit persons on the _same side_ on issue 1 from coming to blows over misperceptions regarding issues 2 and 3. Or not. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 15, 2005, 8:46pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/12 "2005-03-15T20:46:04Z")
> [@Guinastasia](#): > > Wouldn’t that also mean _Brown vs Board of Education of Topeka, KS_ was also "judicial activism? No. Because in _Brown_, the Supreme Court was working within the historical context of the Fourteenth Amendment, which was passed to prevent invidious racial discrimination. The Fourteenth Amendment was meant to apply to racial discrimination. It’s not activist to interpret it in that light. > [@Polycarp](#): > > For some reason, Rick, who used to be very competent at explaining this stuff, has suddenly decided to take refuge in the “appointed judges making laws” canard, which he _knows better_ than to do. I do, eh? > [@Binarydrone](#): > > Can you clarify this for me? I keep hearing about “activist judges” and “legislation by judicial fiat” and the like, but don’t really quite get it. Aren’t the judges simply making rulings on the constitutionality of specific laws and the like? Isn’t that their job? When a judge decides that a particular method of searching is reasonable or unreasonable, he is doing his job - interpreting the words of the Constitution. When a judge uses the words of the Constitution to create a result manifestly not intended by the authors, he is intruding upon the province of the legislature. When a judge finds that there is a due process requirement for the government to permit same-sex marriage, he is stretching the language of the Due Process clause. When a judge interprets a particular search as being reasonable, he is simply using the words of the Fourth Amendment. Does the distinction make sense? ---
**Author:** ![Dob](https://avatars.discourse-cdn.com/v4/letter/d/b2d939/32.png) [@Dob](https://boards.straightdope.com/u/Dob)\ **Post date:** [March 15, 2005, 8:48pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/13 "2005-03-15T20:48:48Z")
> [@](#): > > …so they can enshrine their bigoted hatred of gays. Are you saying anyone who does not agree with SSM has a bigoted hated of gays? Seems a bit simplistic to me. People dont like things, all kinds of things for all kinds of reasons. To lump all of them together seems sophomoric. ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [March 15, 2005, 8:52pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/14 "2005-03-15T20:52:32Z")
**John Mace:** _The will of the people._ **Bricker:** _But it’s a predictable backlash against the spectre of the courts making laws not supported by the will of the people._ But isn’t that phrase “the will of the people” kind of dodging the issue? I mean, if “the people” can’t come up with a justification that will pass judicial scrutiny, then why should the law endorse their “will”? **John:** _I really think it’s a mistake to make this a constutiional issue_ How is it being “made” a constitutional issue? Isn’t a law about the right to marry **intrinsically** a constitutional issue? Maybe what you mean is that you think it’s a mistake not to **ignore** the constitutional issue involved by refraining from challenging such laws in court? **Bricker:** _Does the distinction make sense?_ Not really, not to me at least. It just seems to me that one person’s “interpretation” is another person’s “stretched language”, and there’s no clear way to distinguish between “interpreting” the laws and “creating unintended results” from them. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 15, 2005, 9:01pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/15 "2005-03-15T21:01:35Z")
> [@Kimstu](#): > > Not really, not to me at least. It just seems to me that one person’s “interpretation” is another person’s “stretched language”, and there’s no clear way to distinguish between “interpreting” the laws and “creating unintended results” from them. \*Grrr. \* That should solve the italics. There is a clear way. There is a doctrine called ‘substantive due process’. Do you understand what I mean when I say that? ---
**Author:** ![Binarydrone](https://avatars.discourse-cdn.com/v4/letter/b/3da27b/32.png) [@Binarydrone](https://boards.straightdope.com/u/Binarydrone)\ **Post date:** [March 15, 2005, 9:10pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/16 "2005-03-15T21:10:13Z")
> [@Bricker](#): > > …Does the distinction make sense? Couple of things here. First, I hope that my earlier post was not interpreted as taking a pot shot at you. I am 100% sincere in trying to understand this point of vied. Which brings me to my next point. I still don’t. It is my understanding that in California (most recently) and in other states (Vermont and Massachusetts that I can think of off the top of my head) that the case is that individual citizens were bringing matters such as the Defense of Marriage act to the courts specifically to determine if they were constitutional. Assuming that I am not wrong about that, I don’t see how the court is legislating anything. Aren’t they simply ruling that a given law is or is not constitutional? ---
**Author:** ![Phatlewt](https://avatars.discourse-cdn.com/v4/letter/p/a698b9/32.png) [@Phatlewt](https://boards.straightdope.com/u/Phatlewt)\ **Post date:** [March 15, 2005, 9:11pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/17 "2005-03-15T21:11:21Z")
I’m confused how this can be seen as a non constitutional issue. We’re talking about one group of people who are granted rights by the state to marry the person of their choice, and one group of people who are not granted that right. > [@14th Amendment of the Constitution of the United States](#): > > 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. Pardon me if this has been asked in GD or GQ before, but if a law says that one person may marry the person of his/her choice, but another may not, how does it not violate the 14th amendment? ---
**Author:** ![marshmallow](https://avatars.discourse-cdn.com/v4/letter/m/df705f/32.png) [@marshmallow](https://boards.straightdope.com/u/marshmallow)\ **Post date:** [March 15, 2005, 9:20pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/18 "2005-03-15T21:20:36Z")
**Phatlewt** : I’m not very knowledgeable on the legal matters, but if a state passes a law discriminating against gays isn’t that “due process of law”? Then again, usually when I see that it means a trial, but hey… ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 15, 2005, 9:21pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/19 "2005-03-15T21:21:17Z")
> [@Kimstu](#): > > But isn’t that phrase “the will of the people” kind of dodging the issue? I mean, if “the people” can’t come up with a justification that will pass judicial scrutiny, then why should the law endorse their “will”? Because the only other solution is having the law endorse the will of the minority. The majority doesn’t need a reason, they just need to vote. It might not always produce the best result, but there isn’t a good system that I can think of that would require them to have a reason. Perhaps we can consider the super majority necessary for a federal constitutional amendment to be a built-in mechanism to minimize capricioius majority rule, but it can’t ELIMINATE the problem altogether. > [@](#): > > How is it being “made” a constitutional issue? Isn’t a law about the right to marry **intrinsically** a constitutional issue? Poor wording on my part. I should have said FORCE this as a constitutional issue. And the reason being that I think supporters of SSM will lose that contest. As I said earlier, everytime the issue has come to a vote, the pro-SSM side has lost. ---
**Author:** ![Apos](https://avatars.discourse-cdn.com/v4/letter/a/838e76/32.png) [@Apos](https://boards.straightdope.com/u/Apos)\ **Post date:** [March 15, 2005, 9:22pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/20 "2005-03-15T21:22:24Z")
> [@Bricker](#): > > It’s not wise, I grant you. But it’s a predictable backlash against the spectre of the courts making laws not supported by the will of the people. > > How many states now have anti-SSM constitutional amendments? Unfortunately Bricker, I could buy your arguments if these rulings led to protective legislation against activist rulings\_ in general\_. But given that they target only gay marriage only (and often even gay partnership period), I don’t buy it that this is just a “larger principle” response. I agree: trying to win this battle via the courts is a bad idea. It’s not only bad tactically for gay marriage, it’s bad for the country. But that doesn’t mean I’m much impressed with the “oh, we agree it’s wrong, but activist judges!!! blah blah blah” approach either. I don’t believe it’s sincere. [Next page](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680.md?page=2)