# 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:** 4
**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 4, 2005, 2:17am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/61 "2005-10-04T02:17:01Z")
> [@Bricker](#): > > 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. So, for gay marriage, the argument is that the state has a legitimate interest in excluding some couples (siblings, minors, etc.) therefore banning gays from marrying is close enough to things the state has a legitimate interest in, and as such isn’t unconstitutional? If the state can ban someone from something, they can ban anyone from that thing? If they can forbid a marriage license to Joe Bob and his sister, they can forbid a marriage liscense to left-handed people. But women and minorities get a higher standard of scrutiny because of their respective civil rights ammendments? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [October 4, 2005, 5:30am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/62 "2005-10-04T05:30:21Z")
> [@Raging Catfish](#): > > The difference, I think, is that homosexuals _can_ get married and the law applies to _all_ people. The new law won’t be _special_ if it applies to _all_ people. That’s exactly how the Canadian Parliament did it, in the [Civil Marriage Act](http://www.parl.gc.ca/38/1/parlbus/chambus/house/bills/government/C-38/C-38_4/C-38-4E.html): > [@](#): > > **2.** Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others. The same statute applies to all marriages, whether opposite-sex couples or same-sex couples. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [October 4, 2005, 10:47am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/63 "2005-10-04T10:47:47Z")
> [@betenoir](#): > > As I said. If you read the second half of my post. It’s not an absolute right but it is a right that is granted if there is no reasonable state interest in denying it…as in if one or more of the parties is not considered competent to enter into a contract, if it would violate an existing contract and so on. That is, it is granted in that case _if_ you are heterosexual. As Diogenes said, there isn’t any rational secular basis anyone’s been able to point to in this case, which makes it, potentially, a question of discrimination. (Surely as much as the miscegination laws were.) There is a state interest - that marriage is an institution to promote progeny. 😕 As the AG put it children should only be born to married couples which he [incorrectly] equates to marries couples should be able to have children). Since homosexual couples can not have children, they should not be allowed to be married. The fact that this abuse of logic would also eliminate sterile people, women past menopause, couples that do not want children, etc. from being married seemed to completely escape the Wash AG and the SC. As this case points out, the logic many states use for preventing homosexuals from getting married would also prevent many heterosexuals from getting married too. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [October 4, 2005, 10:51am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/64 "2005-10-04T10:51:52Z")
> [@Miller](#): > > So, for gay marriage, the argument is that the state has a legitimate interest in excluding some couples (siblings, minors, etc.) therefore banning gays from marrying is close enough to things the state has a legitimate interest in, and as such isn’t unconstitutional? If the state can ban someone from something, they can ban anyone from that thing? If they can forbid a marriage license to Joe Bob and his sister, they can forbid a marriage liscense to left-handed people. But women and minorities get a higher standard of scrutiny because of their respective civil rights ammendments? No, it is because women and minorities are a protected class while homosexuals, left-handed people, and people who like green are not. Actions against a non-protected could be considered lawful whilst those same actions against a member of a protected class is discrimination. ---
**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, 12:24pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/65 "2005-10-04T12:24:49Z")
> [@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. **Blaron** correctly nailed this one. No. Your formulation is backwards; a law is presumed constitutional and the person trying to unseat it must show that the law is unconstitutional. Now, after all this commentary, it’s worth pointing out some things. The “rational basis,” “intermediate scrutiny,” and “strict scrutiny” tests do not appear in the Constitution. They are tests developed by the Court in order to apply the Equal Protection Clause. At one time, there was no such test as “intermediate scrutiny.” The Court invented that test to apply to gender-based claims. There is no logical reason the Court could not look at the issue of same-sex marriage and decide that intermediate scrutiny is the correct test to apply. here’s a lot of similarity, after all, in gender and sexual preference issues, at least for purposes of analogy. In my opinion, there is no way an honest application of the “intermediate scrutiny” standard could fail to find same-sex marriage bans unconstitutional. In that same spirit of honesty, there is no way an honest application of the rational basis test could find that same-sex marriage bans violate the Equal Protection Clause. - Rick P.S. We had a discussion on this issue some time ago here and someone (forgive me, but I don’t recall who) made an excellent case for the proposition that there is a FOURTH, “stealth,” standard of review: what he or she called “rational basis with teeth,” and it’s applied whenever the a reviewing court wants to strike down the law but has no overt excuse to change the standard of review. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 4, 2005, 1:05pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/66 "2005-10-04T13:05:52Z")
So are you \*ever \* going to suggest just what this alleged basis might be, or only what format it might take if it existed? ---
**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, 1:52pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/67 "2005-10-04T13:52:57Z")
> [@ElvisL1ves](#): > > So are you \*ever \* going to suggest just what this alleged basis might be, or only what format it might take if it existed? Right now, I’m focusing on the format, because you - among others - don’t understand it. It’s absolutely futile to discuss the specifics before you understand what scale to place them on. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 4, 2005, 2:36pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/68 "2005-10-04T14:36:11Z")
Fine, let’s just take the specifics as you say and let you get on with telling us just what this mysterious argument is that you’ve been withholding from us for so long. Do you in fact have an argument that you’ve been itching to tell us about as soon as you deem us capable of assessing it? \*Do you? \* :rolleyes: ---
**Author:** ![Zeriel](https://avatars.discourse-cdn.com/v4/letter/z/58956e/32.png) [@Zeriel](https://boards.straightdope.com/u/Zeriel)\ **Post date:** [October 4, 2005, 6:20pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/69 "2005-10-04T18:20:40Z")
> [@ElvisL1ves](#): > > Fine, let’s just take the specifics as you say and let you get on with telling us just what this mysterious argument is that you’ve been withholding from us for so long. > > Do you in fact have an argument that you’ve been itching to tell us about as soon as you deem us capable of assessing it? \*Do you? \* :rolleyes: This level of vitriol seems uncalled for, since **Bricker** has already stated he favors gay marriage at the state level and federal recognition of state-sanctioned gay marriages–he’s trying to explain the fine points of U.S. case law, and doing so with a great deal of patience, albiet in a somewhat obsessively step-by-step fashion–there are clearly respondents here who still aren’t clear on the _legal_ meaning of the “rational basis” test. Honestly, once you understand the legal concept of “rational basis”, it seems to make perfect sense why it allows banning of same-sex marriage. **Bricker** , tell me if this sounds like a properly constructed hypothetical “rational basis” arguement: the government has a legitimate interest in regulating marriages (child welfare, property sharing, hospital visitation, taxation, etc). The rule banning gay marriage bears a rational relationship to this end–this does not mean it’s a good way to accomplish the goal, or it’s the best way to accomplish the goal, just that it’s rational to consider it related to the accomplishment of the goal in even the vaguest way. As the man said, if we switch up the criteria to “intermediate scrutiny” (and, as the man said, there are good legal reasons for considering doing that), > [@Bricker](#): > > In my opinion, there is no way an honest application of the “intermediate scrutiny” standard could fail to find same-sex marriage bans unconstitutional. ---
**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 4, 2005, 6:51pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/70 "2005-10-04T18:51:10Z")
> [@Bricker](#): > > P.S. We had a discussion on this issue some time ago here and someone (forgive me, but I don’t recall who) made an excellent case for the proposition that there is a FOURTH, “stealth,” standard of review: what he or she called “rational basis with teeth,” and it’s applied whenever the a reviewing court wants to strike down the law but has no overt excuse to change the standard of review. [First fallout of anti-marriage amendments?](http://boards.straightdope.com/sdmb/showthread.php?t=289661&page=1&pp=50&highlight=rational%2Bbasis%2Bwith%2Bteeth%2Btest) ---
**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, 7:14pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/71 "2005-10-04T19:14:59Z")
> [@Zeriel](#): > > **Bricker** , tell me if this sounds like a properly constructed hypothetical “rational basis” arguement: the government has a legitimate interest in regulating marriages (child welfare, property sharing, hospital visitation, taxation, etc). The rule banning gay marriage bears a rational relationship to this end–this does not mean it’s a good way to accomplish the goal, or it’s the best way to accomplish the goal, just that it’s rational to consider it related to the accomplishment of the goal in even the vaguest way. Yes, although it’s probably necessary to articulate, in general, what that rational relationship is. But it can be as simple as the procreative aspect: that a primary purpose of government interest inregulating marriage has to do with promoting a stable home environment for children, and, therefore, since same-sex couples definitively cannot procreate, the government will not recognize their marriage. Now watch what happens. Despite the fact that I’ve laid out precisely how the rational basis test is to be applied, someone will come along and say, “Well, why not ban marriages of infertile couples?” or “Why not require a fertility test before marriage?” or “What about adoption?” None of those questions has anything to do with the rational basis test. They ask, in essence, “If that’s really your goal, wouldn’t it be MORE rational to do things _this_ way?” And yet that’s not the formula. We don’t care if there is a better way. That’s not what we’re asking. We’re asking if there is some rational relationship between the rule in question and the legitimate government end. In this case, there is. ---
**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 4, 2005, 7:39pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/72 "2005-10-04T19:39:58Z")
> [@Bricker](#): > > Now watch what happens. Despite the fact that I’ve laid out precisely how the rational basis test is to be applied, someone will come along and say, “Well, why not ban marriages of infertile couples?” or “Why not require a fertility test before marriage?” or “What about adoption?” So, if I’m understanding “rational basis” here, the government would be in its rights to ban any or all of those things, and like the gay marriage ban, there’d be nothing unconstituitional about it. Whoever supported it would get crucified in their next election, of course, but the law would still be sound. Stupid, but sound. ---
**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, 7:44pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/73 "2005-10-04T19:44:22Z")
> [@Miller](#): > > So, if I’m understanding “rational basis” here, the government would be in its rights to ban any or all of those things, and like the gay marriage ban, there’d be nothing unconstituitional about it. Whoever supported it would get crucified in their next election, of course, but the law would still be sound. Stupid, but sound. Well, remember we’re just talking about the effects of the Equal Protection Clause, here. It’s possible that the bans you discuss may fail some other tests under some other constitutional clause. But speaking solely of the Equal Protection Clause - yes. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 4, 2005, 8:25pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/74 "2005-10-04T20:25:55Z")
> [@Bricker](#): > > Yes, although it’s probably necessary to articulate, in general, what that rational relationship is. But it can be as simple as the procreative aspect: that a primary purpose of government interest inregulating marriage has to do with promoting a stable home environment for children, and, therefore, since same-sex couples definitively cannot procreate, the government will not recognize their marriage. But same sex couples can and do adopt. If a state allows gays to adopt can they then use the procreation angle to prohibt SSM? I’ve always found that stance hypocritical-- ie, gays can adopt, but can’t marry. And you know I’m not saying that hypocritical = unconstitutional. 🙂 I’m just asking whether that argument would (literally) stand up in court. ---
**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, 8:28pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/75 "2005-10-04T20:28:45Z")
> [@John Mace](#): > > But same sex couples can and do adopt. If a state allows gays to adopt can they then use the procreation angle to prohibt SSM? I’ve always found that stance hypocritical-- ie, gays can adopt, but can’t marry. And you know I’m not saying that hypocritical = unconstitutional. 🙂 I’m just asking whether that argument would (literally) stand up in court. How does your question fit the formulation of the rational basis test? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 4, 2005, 8:42pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/76 "2005-10-04T20:42:25Z")
> [@Bricker](#): > > How does your question fit the formulation of the rational basis test? Well, **Socrates** , if I knew the answer then I wouldn’t have asked. 🙂 ---
**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, 8:55pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/77 "2005-10-04T20:55:22Z")
> [@John Mace](#): > > Well, **Socrates** , if I knew the answer then I wouldn’t have asked. 🙂 Well, the answer is that a state allowing gays to adopt doesn’t necessarily impact the issue of procreation – adoption deals with placing babies already made while procreation deals with making new babies from scratch. But even if it did… the mere fact that there is another rational answer – indeed, another MORE rational answer – doesn’t enter into rational basis analysis. The ONLY question we have to answer is: “Is there a rational relationship between the state action and a legitimate state goal?” ---
**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 4, 2005, 9:05pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/78 "2005-10-04T21:05:56Z")
> [@John Mace](#): > > But same sex couples can and do adopt. Not everywhere. More than a few states have a blanket prohibition on gay adoption, and (IIRC) even gay foster homes. I believe Florida is one such state. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 4, 2005, 9:13pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/79 "2005-10-04T21:13:07Z")
> [@Miller](#): > > Not everywhere. More than a few states have a blanket prohibition on gay adoption, and (IIRC) even gay foster homes. I believe Florida is one such state. According to [wiki, only 5 states make it illegal.](http://en.wikipedia.org/wiki/Gay_adoption) Florida \*\*is \*\*one. Gotta love wiki… they even have an article on “gay adoption”. Amazing. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 5, 2005, 4:20pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/80 "2005-10-05T16:20:38Z")
> [@Zeriel](#): > > This level of vitriol seems uncalled for, since **Bricker** has already stated he favors gay marriage at the state level and federal recognition of state-sanctioned gay marriages His personal feelings are not at issue here. The issue is what this alleged basis for discrimination, rational or otherwise, might be - and we have yet to see it articulated by him or anyone else, in a manner consistent with either the facts of mixed-sex marriage in practice or in history. The means for assessing an argument are irrelevant unless there \*is \* an argument, right? > [@](#): > > Honestly, once you understand the legal concept of “rational basis”, it seems to make perfect sense why it allows banning of same-sex marriage. Then maybe \*you \* can take a stab at it, since **Bricker** steadfastly refuses. What is this basis you speak of? Is there a history that current law is based on it and consistent with it? I see you’ve taken a hypothetical guess that government has an interest in marriage; good - but what do you think is the basis for excluding homosexuals from participating in it? [Previous page](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307.md?page=3) [Next page](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307.md?page=5)