# Is Gay Marriage Unconstitutional? **URL:** \ **Category:** Great Debates\ **Created:** [October 1, 2005, 5:11am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307 "2005-10-01T05:11:34Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Raging\_Catfish](https://avatars.discourse-cdn.com/v4/letter/r/74df32/32.png) [@Raging\_Catfish](https://boards.straightdope.com/u/Raging_Catfish)\ **Post date:** [October 1, 2005, 5:11am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/1 "2005-10-01T05:11:34Z")
Because it creates a law that covers such a small portion of the population (about 3%)? [14th amendment](http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution#Section_1.) > [@](#): > > 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. Other forms of banned marriages include: (1)[mentally retarted](http://slate.msn.com/id/1007972/) (2)first cousins (3)brother and sister (4)polygamy (5)[incompatible blood types](http://www.nolo.com/article.cfm/objectID/EB95C264-54FF-4D07-A89342705EE7133F/118/304/192/FAQ/#757EB178-9077-4FFE-B43C01A4DFF91242) (6)minors without the consent of parents or guardians Or perhaps I misunderstand the 14th amendment. ---
**Author:** ![Strinka](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/strinka/32/512_2.png) [@Strinka](https://boards.straightdope.com/u/Strinka)\ **Post date:** [October 1, 2005, 5:19am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/2 "2005-10-01T05:19:06Z")
> [@Raging Catfish](#): > > 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. How does gay marriage do any of those things? ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [October 1, 2005, 5:21am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/3 "2005-10-01T05:21:32Z")
Whose rights would be abridged by same-sex marriage? ---
**Author:** ![Rodgers01](https://avatars.discourse-cdn.com/v4/letter/r/b19c9b/32.png) [@Rodgers01](https://boards.straightdope.com/u/Rodgers01)\ **Post date:** [October 1, 2005, 7:09am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/4 "2005-10-01T07:09:43Z")
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? ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [October 1, 2005, 8:09am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/5 "2005-10-01T08:09:12Z")
> [@Strinka](#): > > How does gay marriage do any of those things? That’s about the “equal protection of law” part, I think… ---
**Author:** ![betenoir](https://avatars.discourse-cdn.com/v4/letter/b/258eb7/32.png) [@betenoir](https://boards.straightdope.com/u/betenoir)\ **Post date:** [October 1, 2005, 8:55am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/6 "2005-10-01T08:55:34Z")
> [@Raging Catfish](#): > > Because it creates a law that covers such a small portion of the population (about 3%)? 😕 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… ---
**Author:** ![Rodgers01](https://avatars.discourse-cdn.com/v4/letter/r/b19c9b/32.png) [@Rodgers01](https://boards.straightdope.com/u/Rodgers01)\ **Post date:** [October 1, 2005, 9:09am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/7 "2005-10-01T09:09:45Z")
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… ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 1, 2005, 12:14pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/8 "2005-10-01T12:14:11Z")
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. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [October 1, 2005, 1:26pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/9 "2005-10-01T13:26:37Z")
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. ---
**Author:** ![Mr.Slant](https://avatars.discourse-cdn.com/v4/letter/m/c57346/32.png) [@Mr.Slant](https://boards.straightdope.com/u/Mr.Slant)\ **Post date:** [October 1, 2005, 2:49pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/10 "2005-10-01T14:49:41Z")
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. Our Google Ad of the Day: Stay Gay in Kauai Private North Shore Estate. Fun Experience. 4 min to beaches & more URL REMOVED ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [October 1, 2005, 3:03pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/11 "2005-10-01T15:03:32Z")
> [@Mr. Slant](#): > > Could you make the argument that all marriage is unconstitutional seeing as it is, at its heart, the offspring of religion? Well, for that to be the case, marriage would have to be, at its heart, the offspring of religion. And it isn’t. ---
**Author:** ![Raging\_Catfish](https://avatars.discourse-cdn.com/v4/letter/r/74df32/32.png) [@Raging\_Catfish](https://boards.straightdope.com/u/Raging_Catfish)\ **Post date:** [October 1, 2005, 4:40pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/12 "2005-10-01T16:40:24Z")
> [@Rodgers01](#): > > And, to push the issue a bit, technically speaking, how do you wring those other types of banned marriages from the 14th amendment? 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. > [@clairobscur](#): > > That’s about the “equal protection of law” part, I think… 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? ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [October 1, 2005, 4:45pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/13 "2005-10-01T16:45:06Z")
> [@Raging Catfish](#): > > 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. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [October 1, 2005, 8:24pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/14 "2005-10-01T20:24:48Z")
> [@Mr. Slant](#): > > Could you make the argument that all marriage is unconstitutional seeing as it is, at its heart, the offspring of religion? 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). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 1, 2005, 8:31pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/15 "2005-10-01T20:31:17Z")
> [@Diogenes the Cynic](#): > > 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. 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. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [October 1, 2005, 8:46pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/16 "2005-10-01T20:46:06Z")
> [@Bricker](#): > > 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_. 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 ) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 1, 2005, 9:06pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/17 "2005-10-01T21:06:15Z")
> [@BrainGlutton](#): > > 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. ---
**Author:** ![Rillian](https://avatars.discourse-cdn.com/v4/letter/r/bcef8e/32.png) [@Rillian](https://boards.straightdope.com/u/Rillian)\ **Post date:** [October 1, 2005, 9:13pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/18 "2005-10-01T21:13:12Z")
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? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 1, 2005, 9:24pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/19 "2005-10-01T21:24:53Z")
> [@Rillian](#): > > 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. ---
**Author:** ![Revtim](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/revtim/32/1042_2.png) [@Revtim](https://boards.straightdope.com/u/Revtim)\ **Post date:** [October 1, 2005, 11:59pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/20 "2005-10-01T23:59:11Z")
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? [Next page](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307.md?page=2)