Does marriage violate the Consitution?

I won’t reiterate the 1st Amendment of the Constitution (aww… you lazy folk can look it up yourself), but am I the only one that sees our current rules and laws as a tacit endorsement of religion?

Is the answer to the gay communities beef about not being recognized as “couples” not the “expansion” of their rights, but can only be found in the termination of special, unconstitutinal, rights of others?

The Supreme Court has, and will, make exceptions for dire cases of national importance.

Would it consider “marriage” one of them?


You’re not the only one as there are many others who share that belief. I think you’re wrong though. While it is true that the government does recognize marriage within a religious institution as valid they also recognize civil unions. No establishment there.


Nope. Homosexuals aren’t going to get anywhere by attacking marriage.


I agree, as long as civil unions can be created, executed, and dissolved the same as marriages.

But if that were the case what is the gay community’s beef? There must be something to being married that gays think that they are lacking or else this would be a no brainer.

Need I remind y’all that sodomy is illegal still in many states? So two gay men can have a civil union, but if they were intimate, as ANY married couple are, they’re commiting a crime. Does that seem right to anyone?

Oral sex is illegal in a lot of states. Does that stop you?

I think the answer would be that marriage is constitutional because it is itself a civil contract. A couple might want to get married by a priest, minister, or rabbi, but whether they do or not isn’t relevant to their marital status. Any man and any woman, so long as they are eligible under the law, can get married, regardless of their religious beliefs.

Although the forms of marriage legally recognized are limited to those recognized by the Judeo-Christian tradition. One man, one woman. Period.

I don’t think we’re going to get anywhere arguing on 1st Amendment grounds, though. Neither do I think we’re going to get anywhere arguing on grounds of equality before the law based on sexual orientation. The best bet, in my opinion, for gay marriage is fighting it based on the basis of gender discrimination…men are allowed to marry women, but women are not. Women are allowed to marry men, but men are not.

Along with a fervent hope that DOMA, when it is actually brought before the SCOTUS, is overturned on the obvious constitutional grounds. Though I’m not holding my breath on the likelihood of that decision being made.


Health insurance. Gays want spousal benefits. While a lot of companies do offer them to domestic partners, a lot of companies don’t.

Very simple. First of all, there being no “civil union” alternative that can be “created, executed and dissolved the same as marriages”, that provides 100% the same legal rights as “civil marriage”.

It’s NOT ABOUT THE SEX. It’s about the partner in what is called a “civil marriage” being accorded the legal status of “family” before both public AND private institutions (not just “per company policy” a-la Disney). For example (though YMMV per jurisdiction) accumulation of “community property”; survivor benefits; family leave if the partner’s sick; mandatory share in the estate of the other partner should s/he die intestate whether the blood kin likes it or not; power of attorney to decide if they pull the plug on you should you end up a veggie on life-support; etc.

The several states have a “civil union” that provides those benefits, called “marriage”. But then, the states limit it exclusively to monogamous male-female unions. The States * recognize* of the civil condition of “marriage” to the couples that enter the religious condition of “matrimony” in a rite according to their beliefs. However even then they are required to obtain a marriage license and comply with its rules, so no polygamous or same-sex matrimony is recognized even if it’s a legit doctrine of the religion.

Change the statutes regarding civil marriage to read “civil domestic union”, remove the male/female restriction, and then change every last statute so that anywhere it says “spouse” it now says “civil domestic partner” and then you have a true sex-blind civil-union.


Curious anecdote: was in Guatemala back in December 2000 to attend a wedding. They told me that the law is, that whether or not you have a church wedding, you must enter a civil marriage in order to appear as married in the town register. Not just get a license and have the clergyperson sign it at the religious wedding, as in the USA, but actually enter a civil marriage, with witnesses, before an Officer of the Court (can be just a Clerk, it’s brief and the cost is nominal). Sold at cost.

Well, that’s true, but that, in itself, isn’t enough to be a first amendment violation. The court would probably say that marriage being between one man and one woman, while it may have had religious roots, is in this society the culturally accepted norm, and not a particular religious belief.

Or we could simply disagree with the premise that marriage has religious roots. As an atheist, I would argue that forms of marriage pre-date religion, and go back to our pre-human ancestors. The other great apes don’t have marriage…orangutans are solitary, gorillas have single-male harems (typical for mammals), chimps have mixed bands, gibbons have territorial mated pairs. Humans are kind of interesting in that we have mated pairs, but the pairs are part of a larger social structure. Of course, our pre-human concept of marriage also embraces polygamy, and other forms of marriage that aren’t currently legal.

All we have to do is look at common law marriage. Many states recognize that all you have to do is live together, share finances, and have sex in order to be considered married.

Religion didn’t invent marriage, just like religion didn’t invent the idea that killing other people is wrong. Laws against murder aren’t unconstitutional just because of the Ten Commandments.

Two atheists can get married and never set foot in a church, temple, or mosque. I’m an atheist, and I’m married, and my marriage has nothing to do with religion. If you want to argue for gay marriage, argue for it directly. This approach is completely wrong-headed.

Hmmm. I suppose a case could be made that the clergyperson is acting as an agent of the state in contravention of the SOCAS standards. However, I’m much more inclined to read it in the same context as getting a fishing license or getting mail delivered.

The state might contract with a chain of outdoor-recrreation stores to sell fishing licenses. It’s convenient for the fishermen; you can obtain tackle and your license at the same place. It’s convenient for the state; they don’t have to hire additional clerks in the Department of Managing the Environment (whatever it’s called in that state) to issue licenses for money. And it’s convenient for the stores, because they attract business by offering the service and probably made a small proportion of the license fee.

But it does not constitute an endorsement by the state of that chain of stores; it’s merely a public-private partnership for mutual benefit.

Likewise, the U.S.P.S. can contract with a given trucking company to carry loads of mail from one SCF to another, or with Joe Retiredguy to deliver the mail along a rural route. Those contracts are not endorsements of the company or of Joe; they’re employing the services of a private entity to fill a governmental need.

Similarly I can in some states sign my will before witnesses who aver by their signatures that it’s me, I told them it’s my will, and I signed it before them, or I can have it notarized under the same process. Does that mean the state considers a notary’s word to be as good as that of two or three other people? Or does it mean that they’ve picked one class of people on the basis of special training to do the job.

In the U.S., the state recognizes marriages solemnized before specific categories of people, such as judges, who are equipped by their training to ensure that it’s a legal marriage and that the people are competently taking the vows involved. Since a large number of Americans practice a religion in which marriage is a vow before God, employing the services of a clergyperson who will be witnessing those vows before God as also the person who can solemnize a marriage in the eyes of the state is a convenience to the state, not an endorsement of their faith.

There would be nothing stopping me from recruiting a Rabbi to witness my marriage (other than the fact I’m already married) – despite the fact I’m not Jewish. And I could always snag a magistrate for the same purpose. As it happens, I’m Episcopalian, and would have my wedding in my home church.

The same range of choices, with the same preferences, are available to any American of whatever belief (including the null set of atheism).

Marriages in one country are generally recognized in other countries (like the USA). The US aloows its courts to anull or void marriages made elsewhere.

Why is it if I go to downtown Jeddah and marry a couple of local girls and bring them home to Mom in the US, the Americans don’t recognize our marriages?

It seems to me insisting on monogamy (or serial poligamy in the US) is a relgious thing.

It raises all sorts of practical problems. If I (as a US citizen) marrythree ladis, how many can get spouse visas to come to the US to live? I suppose only one. Which one?

It seems to me that marriage is a desiable thing and society should not be too picky over who marries whom.

Marriage (as in public, committed, exclusive relationships, the parties to which require and expect some kind of social recognition) is a social reality which legal codes recognise, rather than a creation of formal legal codes.

It follows that legal formulations of marriage cannot depart too far from society’s beliefs and attitudes; otherwise they cease to be useful.

That is the thinking which leads many countries (including the US) to recognise the legal validity of marriage ceremonies performed by ministers of religion. The couple who go through the ceremony consider themselves married; their family and neighbours consider them married. They would be surprised (to put it no higher) if the state did not.

Other states take a contrary view. By way of underlining the separation of church and state, they do not recognise religious marriage ceremonies. They require a couple who wish to be legally married to have a civil marriage ceremony as well as, or instead of, a religious one.

Even these states, however, cannot depart too far from socially accepted attitudes to marriage. In most western societies marriage is an exclusive relationship; as long as you are married to someone, you cannot marry anyone else. Of course some couples have marriages in which the parties, by agreement, have some freedom to have relationships, including sexual relationships, with others, but even in the case of “open marriage” the parties normally consider that the full relationship between them is not something which can be replicated, and the other partners of either spouse are not themselves in the position of a spouse. Polygamous or polyandrous marriage is scarcely practiced at all in western countries, and as a result does not enjoy any legal or social recognition. If it were practiced, and were socially accepted to any significant extent, in due course legal codes would be amended to reflect the fact. This might happen more quickly in a country which recognises and values diversity than in a very homogenous and conformist society. But legal recognition will not come in advance of social recognition.

Most western countries will recognise a marriage which is valid in the place where it is celebrated, even if it is potentially polygamous. However they will not recognise a marriage which is actually polygamous. I imagine that this is true of the United States. So they answer to Paul in Saudi’s question is, I guess, that he could bring his first wife to the US but not his subsequent wives (unless they could qualify for visas on some grounds other than being his wives).