I was listening to a commentator talking about the absurdity of the whole anti-gay marriage movement and she made the rather brief comment that prohibiting gay marriage was a violation of the First Amendment. Now, I don’t doubt that such an argument can be made, but haven’t the courts ruled against similar arguements in the case of polygamy? So, if someone were to challenge the anti-gay marriage laws on the grounds of the First Amendment, shouldn’t they expect to lose? And if there hasn’t been such a challenge, I gotta ask why not?
To my layman understanding, the only way you could challenge bans on gay marriage from a First Amendment standpoint would be to state that they stem from the illegal establishment of the rules of a certain religion or group of religions in the relevant laws.
The extent of that method’s success rests on how willing the court is to believe that marriage as a legal entity is separable from marriage as a cultural and religious entity. A defense against the argument might rest on stating that the rules are cultural, like the prohibition on marriage between siblings.
I think a stronger argument lies under the “equal protection” clause of the 14th Amendment, Section 1:
*Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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. *
http://www.nps.gov/malu/documents/amend14.htm
If forced to argue solely on 1st Amendment grounds, I’d argue under the “establishment clause”:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances
The argument being that by banning gay marriage, the State is enacting what is essentially a religous doctrine, and thereby showing a preference for religion over no religion, violating the “establishment clause”. Not sure that’s gonna fly.
In the alternative, and freely inventing facts to support a hypothetical, if there happened to be a church that required gay marriage as part of it’s doctrine, it could be argued that not allowing gay marriage violates the “free excercise” clause.
The government is, by the first amendment, forbidden to act based on religious beliefs and morality. As a secular body the only recourse they have to deciding law is logic and statistical data.
The only potential places where marriage intersects with the government are in terms of:
- Taxation (based on an assumption that marriage = dependents)
- Disease prevention (preventing brothers and sisters from marrying, etc.)
- Child raising (won’t molest the children or raise them to be murderers)
#1 is irrelevant between OSM/SSM as there is no difference. Or at most, if you assume gay couples to be less likely to have dependents, you can charge based on dependents rather on the binary married/single state.
#2 is also irrelevant.
#3 could potentially be an issue, if there was any evidence to show that children raised by gay couples were belligerant, couldn’t get a hang on life due to not having parents of both sexes. Or if you could show that gay parents were more likely to molest their kids. However:
- There is no such evidence that I am aware of.
- If you were to start applying this to gay couples, you would also need to start doing it to say, ex-criminals and such for whom the data probably would come out as that there was a negative influence on the kids. So unless you want to pass a no-ex-cons can marry law?
- Male-Male gay couples can’t have their own kids (and F-F only through external means), so this is much more an issue of adoption (or sperm donation) and who is allowed. There’s no reason to make it an issue of marriage.
Which SCOTUS ruling has established that precedent? You’re making far too sweeping a statement since he SCOTUS has clearly allowed what it calls “ceremonial deism” which cannot be called anything but relgious belief. And I’m not sure you can draw a clear line between morality based on religious belief and morality which isn’t.
The SCOTUS has also ruled in favor of slavery even while bound to the same documentation we have today saying that all men are created equal. I stated what argument the first amendment supports, not what would win in a vote in current day.
And I don’t recall ever mentioning a “morality which isn’t religious.”
Yes. The Supreme Court upheld federal anti-polygamy laws in Reynolds v. United States, in 1878. Note that the challenge in that case was on free exercise grounds, not on establishment grounds as some other posters seem to have assumed.
A challenge on free exercise grounds would certainly lose. A challenge on establishment grounds would raise different issues, but would equally certainly lose. See here for a summary of some recent establishment cases.
Because it would lose.
See this thread for extended debate of gay marriage vis-a-vis the Equal Protection Clause of the Fourteenth Amendment.
They weren’t “bound to the same documentation we have today”; slavery was repealed by the 13th amendment to the Constitution. Furthermore, the “all men are created equal” language is from the Declaration of Independence, not the Constitution. The DoI, as eloquently as it expresses the rationale for breaking with England, has never been part of the law of the United States, though perhaps it might be adduced to illuminate the intent of the founding fathers.