How can people be legally oppossed to gay marriage?

Seems pretty obvious to me. Every US citizen is entitled to the same rights and privlages and equal protection under the law. I know people like to say marriage isn’t a right, and blah, blah, blah, but the fact of the matter is this: by denying them marriage, they are denied equal protection.

There are several tax laws that give benefits to married couples. Companies provide health insurance to spouses. One cannot be forced to testify against their spouse about things said in confidence to each other. Cleary, there are rights and privlages being denied people who are not allowed to marry.

Now, some people will pop in and say,
“Civil unions are just fine. They give all those rights, everyone’s happy!”

Um…well…ok, they are a good start, but still not OK. Why? Well, remember “Brown vs. Board of Education?” That supreme court case ruled that the mantra of “seperate but equal” was NOT constitutional. By calling the set of rights granted to gays a different name, it is seperating it, and thereby making it not equal.

So, I ask of the SDMB, what legal arguments can you make against gay marriage? I’d prefer this not turn into a “are you in favor or not of gay marriage” thread, because we have enough of those as it is. I want to try and keep this thread restricted to legal, not moral, arguments.

Does Brown v. Board of Education require any federally-funded restrooms to be unisex? After all, it rejects “separate but equal.” Tell me why we still can have separate bathrooms for men and women without offending the federal constitution.

I would REALLY PREFER if the OP answered this question. I’m not advancing this as a serious point as much as I’m trying to teach something about legal reasoning.

If you look at that section closely, it can also be intrepreted that single people and married people should have the same rights.

That’s not fully the case. We have added rights for married people(joint tax returns, automatic visitation rights, etc) that we have not to singles. Therefore we should REPEAL those special marriage rights.

Fine, you’re right. We get the right to marry, and you get your unisex restrooms. No problem.

Now you tell me how we actually get this done.

The question is: How can gay people be denied the right to marry? The answer is, legally they aren’t. They have the same right to marry as anyone else. There is no legal guarantee that anyone has the right to marry exactly the person they choose. As far as I know, there is no legal guarantee that anyone has the right to marry, only that married people are entitled to certain rights and protections as a result of being so.

There are several qualifiers on who is allowed to marry. They cannot be already married, they have to be of legal age or have parental consent, for example. That they have to be of the opposite sex is another qualifier. Now, you can argue that those qualifiers should be changed, but that isn’t the same as being denied the right to marry.

And yes, I know this sounds pedantic (and maybe even sarcastic, but it isn’t meant that way), but you asked the question.

Denying Gays access to marriage agreements w/ each other constitutes denial of equal protection.

Such a denial is an instance of the following generalization:

Person A says to the gov’t, “I want to enter into contract C w/ person B.”
Gov’t says, “You are not allowed to.”
Person A says, “Why not?”
Gov’t says, either, “Because you are a male,” or, “Because person B is a male.”

Under the constitution, any instantiation of the above generalization is illegal.

It is discrimination based on gender.


Good. An opportunity to teach something about legal reasoning.

When you say, “I’m right,” that suggests that I was advancing some point. I was not. I was asking a question. Please answer it.

Alright, here’s the OP back to answer your question:

I’ve always seen seperate bathrooms as a privacy issue. People have shame, and to a point most don’t want people to see them going the bathroom, especially members of the opposite sex.

But, we DO have unisex bathrooms, so we are not forcing men and women to use seperate facilities, but we ARE forcing homosexuals to use a seperate method to get recognized by the government as a “family unit.”

Another thing to point out is that, AFAIK, there are not people crusading to make all bathrooms unisex. No one cares. And, until it goes before the supreme court, seperate sex bathrooms are not going to get ruled as unconstitutional. However, I do see sometime in the near future someone going before the SCOTUS in some kind of gay marriage capacity. It could be as simple as a gay couple getting arrested for tax fraud for claiming to be married, and having it go all the way to the highest level.

This is why I would prefer that government only recognize civil unions (for everyone). If you then wanted to also go through with a religious marriage ceremony, that could be done at the church of your choosing. This way no group is singled out. Civil ceremony for legal purposes - marriage ceremony for religious purpose only.

I’m sure that’s true, but that’s not what I asked. You implied that “separate but equal” was unconstitutional as per the Brown decision. I asked if this meant that federally-funded restrooms would have to be unisex. Now you bring up a privacy issue and suggest that this has some relevance…but Brown doesn’t mention anything about privacy.

I’m not asking why the Supreme Court hasn’t ruled. I’m asking if, should the issue be presented to them, the Court would be required to rule in a particular way to be in accord with Brown.

HA! Clearly you lack my keen legal mind! I have given this problem the benefit of my intellect.

I have consulted with some of the finest minds out there, and my conclusions are startling but incontrovertible. Are you ready?

My studies and experts have proven conclusively that women cannot pee standing up without making a huge mess. They must sit down.

Men on the other generally prefer to pee standing up.

Men and women both have the equal right to pee. However, they have different plumbing.

A women must sit.

A standing man who pees into a toilet while failing to lift the seat soils the toilet so that it is unusable by women.

Men can use urinals. Men’s restrooms require fewer toilets because of the invention of urinals. Women’s restrooms require more toilets and no urinals.

In order for them to be equal, the must be segregated, otherwise the women have to sit on man piss.

Unisex bathrooms are discriminatory against women.

Quod et demonstratum, your honor.

To continue:

Thus, we have established that differences in biology necessitate different institutions to accomodate these differences and maintain equality.

Again, the key here is that this is not a case of “seperate but equal” but a case of where it must be seperated and different in order to be equal.
Applying this to gay marriage, positing that homosexuality is a biological function therefore institutions must exist to provide nondiscriminatory equality regardless of biology.

A homosexual man’s right to marry a woman is as useful to that man as a urinal is to a women. Both in fact are discriminatory as they leave no option for equality but rather use biology to inflict inequality by a failure to provide reasonable accomodation.

For things to be equal, biology must be accomodated. This means that if a straight person has the right under law to marry a member of the opposite sex, a gay person’s rights must similarly be accomodated according to their biology otherwise they are being discriminated against.

Therefore gay marriage is a right under “equality.”

IANAL but, I would think that the Brown decision isn’t really relevant in this case, in that marriage is a choice, while education is a requirement, and is in fact federally funded, where as marriage isn’t so much funded as subsidized. Though I may be completely off base. Personally, I concur with the opinion of Flickster. It makes sense in the interim to create a civil union status, that affords equal protection under the law. Marriage is a religious ceremony, the originators of which are loath to perform, generally, on homosexual couples, citing bilblical concerns.

I ask, for the 2nd time in a 2nd thread, why is the nomenclature of ‘marriage’ important, if the civil union will address all the same concerns?

That question cuts both ways: if so many people are willing to give gays civil unions that grant all the rights of marriage, why are they so hesitant to call it “marriage,” open up the exsisting marriage laws to all couples, and just be done with it?

Indeed it does, and frankly, I’m not sure about the stats on who is pro civil unions and who isn’t, but for my money, the advocates for gay marriage, the vocal ones at least, took this initiative down themselves. They forced the issue when all it took was a little quiet finesse. I agree, everyone should have the same rights, I’m for SSM, or rather, I’m apathetic, but so many folks aren’t, and it showed in those 10 states. I think another problem with the SSM initiative is that the folks that are against it, are mobilized in great numbers, but the folks that are for it, are for it, but they don’t really care, and aren’t motivated to do anything about it, because it doesn’t effect them directly.

It’s time for the movement to go underground, gather steam and restrategize to make at least one forward leap, rather than 10 large steps backward.

Its all garbage. There is no right to be married. Nor is there any prohibition of marriage. This whole stupid mess is about whether the government conveys onto certains folks certain BENEFITS (not RIGHTS, you dopes) associated with a certain state of being.

I disagree. Name one minority group in this country that has ever gained anything by staying quiet. This is an issue that absolutely needs to be kept in the forefront of the public mind as much as possible. If we’re quiet, the majority will be able to convince themselves that things are okay as they are. If we’re loud, if we’re shrill, even, the mainstream won’t be able to find that complacency. Sooner or later, they’ll give us equal rights, if only to get us to shut up. Before it gets to that point, we’ll have setbacks, sure. We had eleven of them last Tuesday. Like every great struggle, we take one step back for every two steps forward. That’s what makes it a struggle. If it weren’t like that, we’d be talking about the cakewalk for equal rights.

You do realize this statement is entirely meaningless, right? You sound like Dilbert’s boss.

I asked this before and people tried to answer it, yet it is still unclear to me:

What is exactly the difference between “marriage” and “civil union” in the USA.

If there is legally no difference, then why the focus on the use of the word “marriage” for one group and “civil union” for an other one?
Why not call it all “marriage” or all"civil union" and when someone wants to make in addition to this legal marrage/civil union a commitment under religious laws, call this union the name used for this by the religion.

I really don’t understand all this -in my eyes irratiuonal and childish - debate that keeps going on with focus opn the use of the word “marriage” simply because it is in a religious law also called the religious union of two persons “marriage”.
Once again a proof that the US is not at all as “secular” as the US would like to be seen.

Salaam. A

OK, Alde, here we go – and the esteemed lawyers can add on to it:

First of all remember that in civil matters, the US is divided into 50 states, a national capital district, 5 unincoporated territoires, plus the Federal jurisdiciton, each of which regulates who it calls “married” for its own purposes.

What is commonly being called around here “civil union”, namely a state of public civil contract with government sanction that is for equivalent to a civil marriage as pertains to a set of property rights and family-law considerations, exists only in ONE STATE: Vermont; as a result precisely of a compromise about whether to provide marriage rights to gay couples.

In the rest of the USA there is just “marriage” as the state of public civil contract that makes a couple be recognized by the government as forming a family unit. Defined in the traditional one-man-one-woman now-we-are-one-family sense, with all the pertaining benefits, rights, privileges – and costs, inconveniences and burdens, of course.

Where things get sticky is that there being a Constitutional provision that each state gife “full faith and credit” to public acts of other states, it has been understood for a long time that someone who entered a valid marriage in Massachussetts or Hawaii, will be fully recognized as married even if they move to Alabama or Utah, and vice-versa. This of course will raise hackles about recognizing, er, unusual marriages.

In the mid-80s the Defense Of Marriage Act decreed that each state can recognize those marriages it sees fit; however, many people have perceived DOMA (and its state equivalents) as a weak piece of legislation that may not survive a Court challenge.

The “civil union” has been bandied about as an intermediate state of almost-marriage or most-of-the-effects-of-marriage. It has two political problems: gay rights advocates say it’s separatist; and hardcore traditionalists say it’s “a foot in the door” and therefore it should be just plain nothing.

What does exist in much of the USA for people who either will not or can not enter marriage, is “domestic partnership”, which is a state of private contract about mutual rights, responsibilities and duties, and in order to even get close to the effects of marriage requires multiple contracts to be entered.

The weakness of “domestic partnership” being that, being a private contract, entities not a party to it (a city government, a state government, a private business, a NGO, a customer, an employer, etc.) may not feel obligated to recognize them as anything. And most laws in the respective States will by default give priority in any critical juncture to family-by-blood, unless your status is one of marriage (and even then it’s iffy).
Unlike many other jurisdictions in the world, in the USA a devout couple is NOT required to separately perform both a civil marriage AND a religious matrimony. In the USA you can get a civil marriage by going before a government official (depending on where you are it may be a judge, a notary, a Clerk of Court, etc.), making your oaths, and having him/her sign the marriage license and presto, you are married. OR you can go before a priest/minister/clergy of your choice, perform the rites of Holy Matrimony of that religion, have him/her sign the marriage license, and presto, you are married. This reinforces in many Americans the view that the “real” marriage is a sacramental state and that the government license is merely an acknowledgement for the record – rather than that the license is what makes you married and we just happen to allow clergy to validate the document.

The political problem, of course, is that the traditionalists would see a strict separation of civil marriage from religious matrimony as just one more step along the road to teaching their children that piety is just a ritual formality and they can just discard their parents’ teachings as soon as it so suits them.

How can people be legally oppossed to gay marriage?

It is perfectly legal for someone to be opposed to gay marriage. A little something called the First Amendment…