Because it creates a law that covers such a small portion of the population (about 3%)?
Other forms of banned marriages include:
(1)mentally retarted
(2)first cousins
(3)brother and sister
(4)polygamy
(5)incompatible blood types
(6)minors without the consent of parents or guardians
Or perhaps I misunderstand the 14th amendment.
How does gay marriage do any of those things?
Whose rights would be abridged by same-sex marriage?
Ditto Strinka and Diogenes. I think I’m missing something in your argument…
And, to push the issue a bit, technically speaking, how do you wring those other types of banned marriages from the 14th amendment?
That’s about the “equal protection of law” part, I think…
It’s the 14th amendment (in part) that people are using to justify gay marriage. The law currently limits the right to get married (to the person of your choice that is) to one segment of the population (hetrosexuals) and denies it to other. It’s not a matter of having a law that applies to only 3% of the population, it’s changing the law to not deny it to the rest of the population. Hence, equal protection.
Of course as noted, there are other reasons the government denies people the right to marry the pperson of their choice, but there has to be some compelling state interest to do so (like they are metally retarded to a degree that they cannot enter into contracts).
And as they don’t seem t be able to come up with much beyond “God doesn’t like it”, which is not a compelling state interest…well…
Maybe the whole reason they were trying to pass that constitutional amendment banning gay marriage is because there isn’t anything in the document as it currently stands that bans it…
There is nothing in the Fourteenth Amendment - or, indeed, in the rest of the Constitution - that would operate to forbid state governments from authorizing same-sex marriage, or forbid the federal government from recognizing state-solemnized same-sex marriage.
I think Rodgers01 had the right answer. If there was something in the Constitution already, there would be no need for any amendment banning it. The words are just not there, either for or against. Unless we torture the heck out of the words and stretch them to incredible lengths to reach our own predetermined conclusion (either for or against). As Bricker said, there is nothing there. That leaves the states to either have it, or not have it. Massachusetts has it. California had it (for about 5 minutes, to be sarcastic). Other states don’t have it. The 14th Amendment (correct me if I’m wrong Bricker) says the states will not abridge any rights or privileges that have been granted at the Federal level.
Could you make the argument that all marriage is unconstitutional seeing as it is, at its heart, the offspring of religion?
That’s always been my stance. Abolish legal marriage, let persons desirous of obligations to other persons establish contracts.
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Well, for that to be the case, marriage would have to be, at its heart, the offspring of religion. And it isn’t.
I was just listing them as marriages that are forbidden or limited in some (or all) states. Perhaps my last sentence was in a bad place.
Yes and possibly the “due process” part also.
So my next question: Does section 1 of the 14th amendment only refer to laws that prohibit a group, but not to laws that favor a group?
It means that everybody has to be treated equally. You can’t give special rights to one group and exclude others. Same-sex marriage neither favors nor excludes any citizen. It just gives homosexuals the same right that heteros already have.
Some form of marriage has existed in practically every human culture, regardless of its religion – although religious rites have typically been used to solemnize it. One theory is that marriage was originally invented as a property institution – to create a legal distinction between a man’s legitimate children, who can inherit from him, and his bastards, who cannot; this was to protect the position of his wife (or wives) and the feelings and interests of her (or their) family(ies).
The above is what you wish it meant, perhaps.
That’s not what it means in actual law.
In actual, real law, the meaning of the Equal Protection Clause is a bit more nuanced.
Briefly: it means that when the government gives special rights to one group and not another group, it must have a rational basis for doing so. If the distinction between the groups is racially-based, the government’s reasoning must survive a heightened analysis called strict scrutiny. If the distinction between the groups is racially-based, the government’s reasoning must survive a heightened analysis called strict scrutiny. If the distinction between the groups is based on gender, the government’s reasoning must survive a middle-tier analysis called intermediate scrutiny.
There is an abundance of case law laying out that process.
And what level of scrutiny is to be applied when the distinction is based on, not gender in the usual sense of the word, but sexual orientation? Has the SC ever ruled on that? (I should know that but I don’t. :o )
So far as I know, the only time they’ve addressed the issue, they decided that rational basis review was applied in analyzing sexual orientation classifications.
So, for the federal government to discriminate based on race, the law must pass strict scrutiny, to discriminate based on gender, it must pass intermediate scrutiny, and for any other type of discrimination, there must just be a rational basis.
Do I have it right?
What are the U.S. Code definitions of race and gender?
These rules were developed by case law, not statute. I’m not aware of Congress making any definitions of race or gender.
Maybe I’m missing something here, but no gay marriage law gives a right to only a minority. Under these laws, can anybody marry a person of the same gender, or do they have to go through some magical test to prove they are homosexual first? Maybe that creature-in-the-log test in Drawn Together, perhaps?
Just because only gay people would be interested, does not mean the law is limited to them. if same-sex marriage is legal, it’s legal for everyone.
Or am I misunderstanding the issue here, which is very possible?