# 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:** 5
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 5, 2005, 4:28pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/81 "2005-10-05T16:28:59Z")
> [@ElvisL1ves](#): > > 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? Um… A primary purpose of government interest in regulating marriage has to do with promoting a stable home environment for the creation of children, and, therefore, since same-sex couples definitively cannot procreate, the government will not recognize their marriage. There. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [October 5, 2005, 6:24pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/82 "2005-10-05T18:24:58Z")
> [@Bricker](#): > > Um… > > A primary purpose of government interest in regulating marriage has to do with promoting a stable home environment for the creation of children, and, therefore, since same-sex couples definitively cannot procreate, the government will not recognize their marriage. > > There. Underlining mine. But by the same logic, if we stretch it a bit more, anyone too old to breed, or with fertility problems, or who simply choose not to breed, should also not be allowed to marry. (?) I know you are not an “Anti”, so how would you yourself go about supporting a claim that there is a rational basis, or constitutional basis supporting SSM? Be aware, I already know there was nothing that plainly stated anything in favor, just as at the federal level there was nothing plainly against until DOMA. ---
**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 5, 2005, 6:50pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/83 "2005-10-05T18:50:24Z")
> [@SteveG1](#): > > Underlining mine. But by the same logic, if we stretch it a bit more, anyone too old to breed, or with fertility problems, or who simply choose not to breed, should also not be allowed to marry. (?) Let me try and see if I understand this issue… You are proposing a “better solution”, but the fact that such a solution exists is not enough to invalidate the rational basis test. Besides, the state would have to violate any number of other rights to determine whether a woman was too old to conceive. Same sex couples cannot conceive (at least not solely with each other) and the state doesn’t need to do anything intrusive to know that. I would wonder, though, if the statement that same sex couples cannot conceive would be considered true, since there are any number of ways that they can conceive. And, if the statement is indeed false, does the rational basis test fail? Or, can we look at this from the child’s perspective. Since same sex couples can indeed have children, are the children of same sex couples denied equal protection if their parents are not allowed to marry? To make this a bit more interesting, lets assume that in the near future technology will exist to create a human embryo from the joining of two unfertilized eggs or two sperm. Thus, Heather really CAN have two mommies (or two daddies). Would the existence of that technology alter the validity of **Bricker** ’s rational basis proposal? ---
**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, 6:53pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/84 "2005-10-05T18:53:53Z")
> [@Bricker](#): > > A primary purpose of government interest in regulating marriage has to do with promoting a stable home environment for the creation of children, and, therefore, since same-sex couples definitively cannot procreate, the government will not recognize their marriage. Amazingly enough, government will recognize a mixed-sex marriage between people who can’t have children or even don’t intend to. It even continues to recognize marriages of couples whose children have grown and left the home. So much for the “principle” you claim could be behind this state interest in discrimination. :rolleyes: Even among those who want children, the state recognizes marriages of those who adopt children instead of doin’ it old school (which, btw, eliminates your distinction, contrived as it is). Can you offer any evidence that the basis for discrimination you propose for assessment has any basis in history, or in the legislative record under which any state’s marriage laws were enacted? No? Well, can a basis for discrimination be “rational” under \*any \* legal standard you describe, any at all, if it is (1) invented for the purpose and (2) unrelated by fact or actual application to the identifying feature used as a basis for discrimination? Pretty fuckin’ obviously _not_, huh? Come on now. What you’ve described is not and has never been a rational basis for discrimination, since it has never been a state interest. The argument does not exist, as I keep trying to tell you. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [October 5, 2005, 7:11pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/85 "2005-10-05T19:11:38Z")
> [@ElvisL1ves](#): > > Amazingly enough, government will recognize a mixed-sex marriage between people who can’t have children or even don’t intend to. It even continues to recognize marriages of couples whose children have grown and left the home. So much for the “principle” you claim could be behind this state interest in discrimination. :rolleyes: A rational basis doesn’t have to be logically consistant that way. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 5, 2005, 7:16pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/86 "2005-10-05T19:16:15Z")
> [@ElvisL1ves](#): > > Amazingly enough, government will recognize a mixed-sex marriage between people who can’t have children or even don’t intend to. It even continues to recognize marriages of couples whose children have grown and left the home. So much for the “principle” you claim could be behind this state interest in discrimination. :rolleyes: How does that statement fit into the rational basis test? > [@](#): > > Even among those who want children, the state recognizes marriages of those who adopt children instead of doin’ it old school (which, btw, eliminates your distinction, contrived as it is). How does that statement fit into the rational basis test? > [@](#): > > Can you offer any evidence that the basis for discrimination you propose for assessment has any basis in history, or in the legislative record under which any state’s marriage laws were enacted? How does that question apply to the rational basis test? > [@](#): > > Well, can a basis for discrimination be “rational” under \*any \* legal standard you describe, any at all, if it is (1) invented for the purpose and (2) unrelated by fact or actual application to the identifying feature used as a basis for discrimination? Pretty fuckin’ obviously _not_, huh? This question shows either a completely inability to understand the test that I hve so carefully explained, or an unwillingness to apply it. Let me see if I can help you through it. What, specifically, are you challenging? Think about this. You say: “Amazingly enough, government will recognize a mixed-sex marriage between people who can’t have children or even don’t intend to.” This ignores what I said above: the existence of another, more rational, scheme to further the interest is not at issue. You are asking a question that doesn’t get to be asked. You’re saying, in effect, if the government’s goal truly is the creation of children, then why does it recognize marriages of opposite sex infertile couples? But that’s NOT HOW THE TEST WORKS. This is why I tried (futilely, it seems) to get you to demonstrate understanding of the test. But no - you were all-fired anxious to shoot down whatever reason was offered. You said: “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.” But now that you’re addressing the argument, you’ve immediately abandoned the specifics I said! Your post keeps using the word “discrimination” as though it had some magic. “Discrimination” is not part of the rational basis test. Stop using it. Whether there are other, better, more rational plans that would better further the government’s goal? Not part of the rational basis test. You do manage to ask one question that may not have been explained before. To paraphrase: can a legitimate government interest exist if there is no evidence for that specific interest in the legislative history of the statute being defended? Answer: yes. Please, PLEASE try to study this issue for a moment before replying again. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [October 5, 2005, 7:43pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/87 "2005-10-05T19:43:33Z")
Fer chrissakes, **ElvisL1ves** , **Bricker** is simply explaining what the law _is_. The fact that you do not like what the law _is_ is no reason to be hostile to him - nor, may I add, is whatever interactions you may have had with him in the past. As it happens, **Bricker** ’s analysis is absolutely right - as has been demonstrated by the passage of same-sex marriage bans, and the utter failure of attempts to have such laws held unconstitutional under the federal constitution (the Massachusetts decision was based upon the state\* Constitution). Equal protection, until and unless the Supremes decide that sexual orientation warrants intermediate or strict scrutiny, is a nonstarter on finding same-sex marriage bans unconstitutional. There are other (possible) ways. About a decade ago, I wrote a law review article on the issue. I’ll try to pull it out and see what remains germane, though a lot of my conclusions were specific to New York state. Sua ---
**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, 7:56pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/88 "2005-10-05T19:56:13Z")
> [@SuaSponte](#): > > Fer chrissakes, **ElvisL1ves** , **Bricker** is simply explaining what the law _is_. Nope. Cite for what the law (\*not \* somebody’s invented ad-hoc excuse) _is_ defining the basis (rational or otherwise) of the state’s interest in limiting marriage only to mixed-sex couples? I’ve kept on asking, and not gotten anything in reply. Maybe \*you \* can find something. > [@](#): > > As it happens, **Bricker** ’s analysis is absolutely right - as has been demonstrated by the passage of same-sex marriage bans, and the utter failure of attempts to have such laws held unconstitutional under the federal constitution The passage of a referendum is not indicative of its constitutionality - is that what you’re saying? The issue hasn’t been addressed in court at the federal level yet. A bit premature to call it “utter failure”, innit? ---
**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, 7:58pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/89 "2005-10-05T19:58:28Z")
> [@Bricker](#): > > How does that statement fit into the rational basis test? Before you can assess an argument, it first has to _exist_. True? Once you’ve acknowledged that, we can move forward. Fair enough? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 5, 2005, 8:12pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/90 "2005-10-05T20:12:34Z")
> [@ElvisL1ves](#): > > Before you can assess an argument, it first has to _exist_. True? > > Once you’ve acknowledged that, we can move forward. Fair enough? True. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [October 5, 2005, 8:12pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/91 "2005-10-05T20:12:53Z")
> [@ElvisL1ves](#): > > Nope. Cite for what the law (\*not \* somebody’s invented ad-hoc excuse) _is_ defining the basis (rational or otherwise) of the state’s interest in limiting marriage only to mixed-sex couples? I’ve kept on asking, and not gotten anything in reply. Maybe \*you \* can find something. ::sigh:: Fine, here it is: > [@](#): > > The parties in this case have variously suggested DOMA is rationally related to the legitimate government interest of encouraging procreation, or of encouraging the creation of stable relationships that facilitate rearing children by both biological parents. Similar statements of a legitimate interest have been made by various courts. See Wilson, 354 F.Supp.2d at 1308 (collecting court-recognized legitimate interest descriptions); In re Kandu, 315 B.R. at 145-46 (same). The Court finds it is a legitimate interest to encourage the stability and legitimacy of what may reasonably be viewed as the optimal union for procreating and rearing children by both biological parents. _Smelt v. County of Orange_, 374 F.Supp.2d 861, 880 (C.D.Cal. 2005). BTW, on the rational relationship test - from the US Supreme Court: > [@](#): > > In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. _FCC v. Beach Communications, Inc.,_ 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). The presumption of validity of a law remains true “even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous.” _Romer v. Evans,_ 517 U.S. 620, 632, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996)). Happy? I could get you more - a lot more - quotes on both issues. Sua ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 5, 2005, 8:16pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/92 "2005-10-05T20:16:26Z")
Question: Must the legislature define its goal at the time it passes the legislation, or, indeed, at ANY time? Answer: No Question: So the court that is looking for a rational relationship to a legitimate state goal can just imagine a state goal that fits? Answer: Yes ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [October 5, 2005, 8:18pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/93 "2005-10-05T20:18:23Z")
FTR, the above research took less than three minutes on Westlaw. This is not obscure stuff - the state’s interest in marriage for procreation, and the rational relationship test are Law School 101. **Bricker** is a lawyer, and therefore he knows (at least) Law School 101. If a doctor had told you that colds are caused by viruses, would you have called it an “invented ad hoc excuse” and demanded a cite? Sua ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [October 5, 2005, 8:30pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/94 "2005-10-05T20:30:18Z")
> [@John Mace](#): > > I would wonder, though, if the statement that same sex couples cannot conceive would be considered true, since there are any number of ways that they can conceive. And, if the statement is indeed false, does the rational basis test fail? I would think so, but I am inclined to say so based on my own strong opinions on the subject. > [@John Mace](#): > > Or, can we look at this from the child’s perspective. Since same sex couples can indeed have children, are the children of same sex couples denied equal protection if their parents are not allowed to marry? That would depend a lot on our culture. There was a time when illegitimates (or bastards to use the old term) had no rights to the family name, and could not inherit the family land and wealth (if any). Then there is the social stigma. It would be interesting and maybe useful to use this argument as a basis of claiming that harm is being done to the children. > [@John Mace](#): > > To make this a bit more interesting, lets assume that in the near future technology will exist to create a human embryo from the joining of two unfertilized eggs or two sperm. Thus, Heather really CAN have two mommies (or two daddies). Would the existence of that technology alter the validity of **Bricker** ’s rational basis proposal? Biologically, that isn’t possible now, and I don’t think we should simply wait for a new technology to fix our problems. That new tech may never come. Or, it could become a political football like stem cells. There will always be a Luddite element out there. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [October 5, 2005, 8:40pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/95 "2005-10-05T20:40:39Z")
> [@John Mace](#): > > Let me try and see if I understand this issue… > I would wonder, though, if the statement that same sex couples cannot conceive would be considered true, since there are any number of ways that they can conceive. And, if the statement is indeed false, does the rational basis test fail? No, because the state is allowed to make generalizations when enacting a law. For example, there certainly are some 15 and 14 year-olds who are physically and mentally mature enough to safely drive a car. But the state is allowed to say that, generally speaking, you have to be sixteen to be considered so physically and mentally mature. So, while some same sex couples do conceive, the state can generalize and say that the purpose of a same sex union is generally not to procreate. > [@](#): > > Or, can we look at this from the child’s perspective. Since same sex couples can indeed have children, are the children of same sex couples denied equal protection if their parents are not allowed to marry? In my law review article, I made a “best interests of the child” argument to argue for same sex marriage. But that was based upon New York law and precedent, not equal protection. The biggest problem is that the children of same-sex marriages are not a definable “suspect class”, entitled to stricter scrutiny. Thus, rational relationship still applies, and the state can still generalize - even if those kids get screwed. Remember, a law will pass muster “even if the law seems unwise or **works to the disadvantage of a particular group**.” Sua ---
**Author:** ![ENugent](https://avatars.discourse-cdn.com/v4/letter/e/4af34b/32.png) [@ENugent](https://boards.straightdope.com/u/ENugent)\ **Post date:** [October 5, 2005, 9:08pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/96 "2005-10-05T21:08:42Z")
Don’t distinctions based on legitimacy also get intermediate scrutiny? I wonder if you could use that to get out of the rational-basis mousetrap. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [October 5, 2005, 9:40pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/97 "2005-10-05T21:40:57Z")
Nope. Children of gay parents are not being treated differently than children of unmarried straight folk. ---
**Author:** ![ENugent](https://avatars.discourse-cdn.com/v4/letter/e/4af34b/32.png) [@ENugent](https://boards.straightdope.com/u/ENugent)\ **Post date:** [October 5, 2005, 10:05pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/98 "2005-10-05T22:05:31Z")
> [@SuaSponte](#): > > Nope. Children of gay parents are not being treated differently than children of unmarried straight folk. But are they being denied any protections that they could have gotten if their parents had been permitted to marry? ---
**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 5, 2005, 10:14pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/99 "2005-10-05T22:14:16Z")
> [@SteveG1](#): > > Biologically, that isn’t possible now, and I don’t think we should simply wait for a new technology to fix our problems. That new tech may never come. Or, it could become a political football like stem cells. There will always be a Luddite element out there. I wasn’t proposing that we wait. I was simply trying to understand how the law would apply under different circumstances. **Sua** : Thanks for the clarification. **Elvis** : You’re getting too hung up on the “rational” part of “rational basis”. It’s a lousy term from a layman’s perspective because it implies that there must be a good, logical reason. In fact, it doesn’t mean that at all, as several lawyers have tried to make to clear to us on this board. Your position on this subject is not unlike the creationists saying “evolution is only a theory”, implying that it’s just a guess or that it’s somehow not “true”. But as you and I know, the term “theory” means something entirely different to scientists than it does to laymen. “Rational” here just means there has to be a reason-- doesn’t need to be a good reason or the best reason, just “a reason”. ---
**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 6, 2005, 12:35am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/100 "2005-10-06T00:35:51Z")
> [@Bricker](#): > > Um… > > A primary purpose of government interest in regulating marriage has to do with promoting a stable home environment for the creation of children, and, therefore, since same-sex couples definitively cannot procreate, the government will not recognize their marriage. > > There. Read post #63. You’re saying \*\*anyone \*\* who cannot have children should not be allowed to be married? [Previous page](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307.md?page=4) [Next page](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307.md?page=6)