# 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:** 3
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 3, 2005, 1:27pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/41 "2005-10-03T13:27:06Z")
I’m sure he’ll do so right after you explicate \*what \* basis you think _exists_. \*Then \* it can be discussed whether or not it meets a particular standard. Cart before the horse again, Counselor. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 3, 2005, 1:37pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/42 "2005-10-03T13:37:48Z")
> [@ElvisL1ves](#): > > I’m sure he’ll do so right after you explicate \*what \* basis you think _exists_. \*Then \* it can be discussed whether or not it meets a particular standard. Cart before the horse again, Counselor. No. The first step is to determine how to apply the test. The second step is to apply it to a particular set of facts. It’s like finding the volume of a solid. First you determine what equation to use. Then you insert the measurements of your particular solid into the equation. What IS the “rational basis” test? What does “applying the rational basis test” mean? That is the first question to be answered. - Rick (Actually, it’s not the FIRST question. We have already answered the first question: “Which test do we apply?”) ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 3, 2005, 2:23pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/43 "2005-10-03T14:23:46Z")
IOW, you \*don’t \* have a “basis” to propose for consideration, as I pointed out. As \*\*Dio \*\* said, there is no rational basis for such discrimination, _because there is no basis for it at all_. The specific format a basis might take _if it existed_, or the standard it might meet _if it existed_, are as relevant to the world of reality as, say, how hot the sun would be if it were blue. If you have no argument, why are you being argumentative? ---
**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 3, 2005, 2:42pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/44 "2005-10-03T14:42:45Z")
> [@Bricker](#): > > Unfortunately, just as I earlier had to correct your summary of the meaning of the Equal Protection Clause, I must step in here again. > > Based on your previous arguments in other threads, I do not believe you understand the rational basis test or how to apply it. > > But perhaps I am wrong. > > Can you explain what your understanding is of the rational basis test and how it is applied? The rational basis test means that a state law must be upheld if it can be shown that the law (or whether excluding a specific classification from a privilege) serves a legitimate state interest. There is no legitimate state interest in excluding same-sex couples from having access to the same priveleges of marriage as hetero couples. All objections are rooted in either religion or bigotry. This is the part when you try to cite children as a state interest (a n intereset which you will claim is neither religious nor bigoted). My rebuttal is that you would then have to a.) prove that that married people are any more likely to have children than unmarried people or gay people. b.) explain why the state has no interest in protecting children of same-sex couples and c.) explain why infertile hetero couples should be allowed a special exception for marriage but not gay people. The children thing is just _ad hoc_ grasping at straws. You may claim it’s not rooted in bigotry but I would argue that it’s nothing but a _mask_ for bigotry and that it doesn’t hold up to even a little bit of thought. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 3, 2005, 4:32pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/45 "2005-10-03T16:32:02Z")
It’s pretty sad to have to guess what somebody else’s argument might be so you can make it for him. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [October 3, 2005, 4:44pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/46 "2005-10-03T16:44:25Z")
So what would be the reason for not recognizing or granting a right/privilege such as same sex marriage? Is there some way that it would undermine domestic tranquility , national security or general welfare? Would it be reasonable to think it would lead to sedition or crime or rioting in the streets? Just what is the reason? It seems to be purely religious or prejudice, once we strip away all the propaganda. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 3, 2005, 7:24pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/47 "2005-10-03T19:24:23Z")
> [@Diogenes the Cynic](#): > > The rational basis test means that a state law must be upheld if it can be shown that the law (or whether excluding a specific classification from a privilege) serves a legitimate state interest. There is no legitimate state interest in excluding same-sex couples from having access to the same priveleges of marriage as hetero couples. All objections are rooted in either religion or bigotry. Not quite, but very close. We do not ask if the law “serves” a legitimate state interest. We ask if the law could have a rational relationship to a legitimate state interest. This distinction is important, because it does not - for example - allow the reviewer to strike down a law simply because there is a better way of achieving the state interest. For example, the New York Transit Authority had a policy that forbid hiring anyone for any position if they were on a methadone maintenance program. This wasn’t just drivers and dispatchers. This wasn’t an illegal drug like heroin. These were people receiving methadone under a doctor’s care. Some of these people sued, pointing out that even if the Authority’s rule made sense for people in safety-sensitive situations, it made absolutely no sense to apply it to all Authority workers. A better approach, they said, would be for the Authority to hire methadone users except to safety-sensitive positions. The Authority’s rule was upheld under the rational basis test. Also from New York: it is a crime to aid someone else iin committing or attempting suicide, but patients can legally refuse even lifesaving medical treatment. So a person in a final state of a fatal illness who happens to be on life support can disconnect it to end his life sooner, but another person, also terminally ill but NOT connected to a life support system can do nothing to hasten his own end. New York’s rule was upheld under the rational basis test. The Foreign Service had a rule that employees must retire at age 60. The Civil Service permitted employees to work past age 60, even if their employment was overseas. Foreign Service employees claimed that this was completely crazy: they were forced to retire while other government employees could keep working. The Foreign Service rule was upheld under the rational basis test. New Orleans forbid pushcart food vendors from operating in the French Quarter, but created a “grandfather clause” to allow pushcart vendors who had been in business for eight years prior to the law’s passage to remain. The city was sued by a pushcart vendor who had been in business for only two years before the law was passed. She pointed out that only two pushcart vendors were permitted to remain under the law’s function, and the “eight years” figure was completely arbitrary; there could be no conceivable rational reason to pick eight years as a cutoff point. New Orleans won; the rule was upheld under the rational basis test. All these examples should give you an idea that you’re applying the rational basis test - in your mind - incorrectly. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [October 3, 2005, 9:02pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/48 "2005-10-03T21:02:06Z")
I guess I really don’t understand “rational basis,” because none of those decisions seem at all rational to me. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 3, 2005, 9:22pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/49 "2005-10-03T21:22:02Z")
> [@Miller](#): > > I guess I really don’t understand “rational basis,” because none of those decisions seem at all rational to me. Right. Because you read “rational basis” and think to yourself, “That’s simple: is the law a rational one?” That’s not a crazy conclusion… but it’s wrong. That formulation is NOT the rational basis test, and it bugs me no end that posters here inveigh constantly about what the result the rational basis test should yield when there is apparently no real understanding of what the test is. The question that must be answered is: “Does the law bear a rational relationship to a legitimate government interest?” It’s a very deferential standard of review. It doesn’t ask if there is a better - “more rational” - way of reaching the goal. It doesn’t ask if the reviewer agrees with the goal, or if the goal is the best one for the government to have. It doesn’t ask if the law substantially furthers the government goal; it doesn’t ask if the law also reaches conduct not related to the government goal. It simply asks: is there some thin measure of a rational relationship to a legitimate government purpose? ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [October 3, 2005, 10:02pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/50 "2005-10-03T22:02:57Z")
So, the “rational basis” behind the NY transit authority’s methadone ruling is that, because there’s a legimitate reason to have that rule baring some employees from being on methadone, it’s legitimate for them to bar all employees from being on methadone? ---
**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 3, 2005, 10:29pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/51 "2005-10-03T22:29:19Z")
What rational relationship does a same-sex marriage prohibition have with any legitimate state interest? ---
**Author:** ![The\_Hook](https://avatars.discourse-cdn.com/v4/letter/t/ccd318/32.png) [@The\_Hook](https://boards.straightdope.com/u/The_Hook)\ **Post date:** [October 3, 2005, 11:10pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/52 "2005-10-03T23:10:58Z")
> [@Diogenes the Cynic](#): > > What rational relationship does a same-sex marriage prohibition have with any legitimate state interest? I believe the question should be: what legitimate state interest does same-sex marriage prohibition fulfills? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 4, 2005, 1:10am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/53 "2005-10-04T01:10:46Z")
> [@Miller](#): > > So, the “rational basis” behind the NY transit authority’s methadone ruling is that, because there’s a legimitate reason to have that rule baring some employees from being on methadone, it’s legitimate for them to bar all employees from being on methadone? Yes. Better understood if you phrase it correctly: The Authority has a legitimate interest in excluding methadone users from some jobs. The rule excluding methadone users from all jobs bears a rational relationship to that end. ---
**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 4, 2005, 1:19am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/54 "2005-10-04T01:19:37Z")
> [@The Hook](#): > > I believe the question should be: what legitimate state interest does same-sex marriage prohibition fulfills? The same interest that hetero marriage fulfills…whatever that is. ---
**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 4, 2005, 1:22am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/55 "2005-10-04T01:22:10Z")
It’s a backwards question anyway. The state has to show a rational basis for excluding a class of people from a privelege it affords to others. That class does not have to prove why it should be _included_. Inclusion is the default. ---
**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 4, 2005, 1:23am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/56 "2005-10-04T01:23:42Z")
> [@The Hook](#): > > I believe the question should be: what legitimate state interest does same-sex marriage prohibition fulfills? After a second look, I think i might have completely misunderstood your post. I think I agree with you. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 4, 2005, 1:24am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/57 "2005-10-04T01:24:43Z")
> [@Diogenes the Cynic](#): > > The same interest that hetero marriage fulfills…whatever that is. Nope. Doesn’t matter. You’re leaving the rational basis test behind again. There is no rule that forces the government to equate same-sex marriage and opposite-sex marriage. There should be. Don’t get me wrong. At the state level, there should be such a recognition. But the rational basis test doesn’t mandate that. It only asks, “Is there a rational relationship between the rule in question and a legitimate government end?” ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [October 4, 2005, 1:34am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/58 "2005-10-04T01:34:20Z")
> [@Diogenes the Cynic](#): > > It’s a backwards question anyway. The state has to show a rational basis for excluding a class of people from a privelege it affords to others. That class does not have to prove why it should be _included_. Inclusion is the default. Laws are presumptively considered constitutional from the onset. ---
**Author:** ![The\_Hook](https://avatars.discourse-cdn.com/v4/letter/t/ccd318/32.png) [@The\_Hook](https://boards.straightdope.com/u/The_Hook)\ **Post date:** [October 4, 2005, 1:36am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/59 "2005-10-04T01:36:21Z")
> [@Bricker](#): > > But the rational basis test doesn’t mandate that. It only asks, “Is there a rational relationship between the rule in question and a legitimate government end?” The rational relationship has been established, but who gets to decide if the so-called “legitimate government end” is a false premise or not? If saying that it’s false is incorrect then how would one establish such a law to begin with and what does one have to do to invalidate/repeal it? ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [October 4, 2005, 1:45am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/60 "2005-10-04T01:45:09Z")
> [@Bricker](#): > > But the rational basis test doesn’t mandate that. It only asks, “Is there a rational relationship between the rule in question and a legitimate government end?” But if marriage is a Fundamental Right (Loving vs Virginia), wouldn’t restrictions on marriage fall under the Strict Scrutiny standard? [Previous page](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307.md?page=2) [Next page](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307.md?page=4)