# 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:** 7
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [October 6, 2005, 6:57pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/121 "2005-10-06T18:57:10Z")
> [@ElvisL1ves](#): > > Well, not really - members of a gay couple can become married only by ceasing to be a couple, a situation that does not pertain to a straight couple. That’s a legal distinction. No, because a member of an unmarried straight couple can may somebody else, who is not the parent of their child. > [@](#): > > Under the law, you mean, or in the real world? That hasn’t been adjudicated legally AFAIK. Both. It has been adjudicated legally - sexual orientation has been determined not to create a suspect classification. Indeed, it has been adjudicated in the cases I have cited to you. If sexual orientation was a suspect classification, the rational relationship test would not have been applied. > [@](#): > > IOW It won’t be ruled upon until it’s ruled upon. And that probably isn’t going to be long coming, right? That all depends upon how fast genetic science progresses. We are in an exciting early era of discovery in genetics, but I suspect that it will be indeed quite some time before a phenomenon as complex as sexual orientation is reduced to a simple “if you have A, B, and C genes, you are gay,” if that ever happens. > [@](#): > > Same thing there, too - until there’s a court case to address the matter, it won’t be established. But it does not follow that such would be the ruling in a case not yet brought. Two problems with this. _First_, you keep assuming that bans on gay marriage have not been brought to courts. But they have; there was a good deal of litigation over DOMA, as one example. _Second,_ while in theory each case stands alone, in fact precedent plays a key role. Courts will not lightly stray from precedent, and the precedents are (i) gays are not a suspect class; (ii) therefore, the “rational relation” test applies, and (iii) under the rational relation test, government has a rational basis for favoring (and thus allowing) marriages that are much more likely to give rise to children. > [@](#): > > That it’s been used as an ad hoc invention in the past, as in the incest cases you mention, doesn’t make it less of an ad hoc invention in the present. Yes, it does, because once an ad hoc invention of a court has been made in the past, it becomes _precedent_. **Elvis** , all issues of first impression result in _ad hoc_ decisions by courts. That’s the role of courts in common law systems - the legislature makes laws, and the courts figure out how to apply those laws to circumstances the legislature didn’t address or expect. The courts try to figure out what the legislatures would have done had they thought of it, applying axioms of law and basic principles, and come up with an _ad hoc_ rule. But once the _ad hoc_ rule is made, it becomes **precedent**. The legislature has the opportunity to overturn the _ad hoc_ rule by amending the law, and if they don’t do so, the courts assume that the legislature approves of the _ad hoc_ determination. Later courts rely upon the _ad hoc_ rule - indeed inferior courts are obliged to do so - and it becomes the law of the land. > [@](#): > > At any rate, the fact that the state also freely creates marriages between nonprocreators should thoroughly undermine the argument that that’s really the basis for it. No, it doesn’t, because the state is not obliged to make case-by-case determinations. Instead, it is allowed to make what are known as “bright line” rules. As examples, the government: [ul] [li]May make the driving age 16, even though some 15 y.o.'s are better drivers than most 40 y.o.'s[/li][li]May cut off food stamp eligibility at 125% of the poverty level, even though some people at 127% of the poverty level have special dietary needs they cannot afford without food stamps;[/li][li]May bar all persons who test positive for drugs from government employment, even if drug use would only adversely affect the ability to perform 20% of government jobs;[/li][/ul] etc., etc. The government does not have to test every couple for fertility, when a bright-line rule will cover the large percentage of married couples. > [@](#): > > But then we’re getting into the rationality side of the issue - do you want to? Sure, but not in this thread - it’s long enough, and the rational relationship test applies to a vast area of law outside of gay marriage. I just want to make clear three things: First, I’m greatly in favor of gay marriage. I just recognize that there isn’t an argument in favor of it that will overcome the rational relation test. Second, you are still stuck on rationality. Just start calling it the “any non-insane reason” test, and it may help you. Third, equal protection is not the be all and end all. There are other ways to attack a law. Sua ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 6, 2005, 7:52pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/122 "2005-10-06T19:52:04Z")
> [@SuaSponte](#): > > No, because a member of an unmarried straight couple can may somebody else, who is not the parent of their child. What I said was that the unmarried straight couple can marry and still be a couple. The gay couple cannot. That is a distinction under the law. > [@](#): > > sexual orientation has been determined not to create a suspect classification. In the applications which you have cited, sure. In regard to marriage, no. > [@](#): > > That all depends upon how fast genetic science progresses. I was referring to legal recognition. Do you know of a case where gayness has been ruled to be a matter of choice? Or is that still unsettled legally? The “coming soon” comment referred to cases being brought now in which that is a central point. > [@](#): > > _First_, you keep assuming that bans on gay marriage have not been brought to courts. But they have; there was a good deal of litigation over DOMA, as one example. At state level, yes - not at the Supreme Court, not under federal constitutional guarantees. > [@](#): > > _Second,_ while in theory each case stands alone, in fact precedent plays a key role. Not where the “precedent” is the case being considered, and not where it’s another case that addressed a different point. > [@](#): > > Yes, it does, because once an ad hoc invention of a court has been made in the past, it becomes _precedent_. I should have made that clearer. But precedents have to be applied according to their relevance. > [@](#): > > The courts try to figure out what the legislatures would have done had they thought of it, applying axioms of law and basic principles, and come up with an _ad hoc_ rule. Talk about judicial activism! No, the “ad hoc” comments I made were against the observation noted by **Bricker** that anything the state’s lawyer can dream up is something the legislature could have thought about (even if they patently didn’t) and is therefore acceptable. To us laymen, that’s called “making shit up”. > [@](#): > > No, it doesn’t, because the state is not obliged to make case-by-case determinations. Instead, it is allowed to make what are known as “bright line” rules. In all the examples you list, there is a basis, even a rational one, for each of those legal restrictions. A minority number can be used, but it’s still a number. What would you suggest is the basis for excluding gays from marriage as a bright line? > [@](#): > > government does not have to test every couple for fertility, when a bright-line rule will cover the large percentage of married couples. In fact, the government does not test any couple for fertility or the intent to procreate, even when it’s obvious that they don’t. Yet the “bright line” excludes gay couples who wish to adopt but not straight couples who wish to adopt. > [@](#): > > Second, you are still stuck on rationality. Just start calling it the “any non-insane reason” test, and it may help you. I frickin’ keep trying to explain that where I’m stuck is NOT rationality but BASIS. The only bases offered _don’t_ meet the “non-insane reason” test, and I still argue that they don’t even meet the “existence” test, but perhaps YMMV. > [@](#): > > Third, equal protection is not the be all and end all. There are other ways to attack a law. Of course. That’s why we have the commerce clause. 🙂 Yes, I know the MA SJC used due process instead. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [October 6, 2005, 9:20pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/123 "2005-10-06T21:20:30Z")
> [@ElvisL1ves](#): > > What I said was that the unmarried straight couple can marry and still be a couple. The gay couple cannot. That is a distinction under the law. Nope. There is no right to marry a particular individual. There is simply a right to marry. > [@](#): > > In the applications which you have cited, sure. In regard to marriage, no. In equal protection jurisprudence, determination of whether a group is a suspect class does not depend upon the particular issue. You is in a suspect class, or you ain’t. So no, homosexuals are not a suspect class, period. > [@](#): > > I was referring to legal recognition. Do you know of a case where gayness has been ruled to be a matter of choice? Or is that still unsettled legally? The “coming soon” comment referred to cases being brought now in which that is a central point. There ain’t gonna be legal recognition of the immutability of homosexuality until there is a scientific determination of that, if then. Yes, that is opinion - but any attorney who brings a case arguing this until the science is there is a moron. > [@](#): > > At state level, yes - not at the Supreme Court, not under federal constitutional guarantees. No, the _Smelt_ and _Kandu_ cases, to give just two examples, were both determined in federal courts, applying the federal constitution. No, there is no Supreme Court case yet, but that doesn’t mean that those and other cases ain’t the law. They are the law, at least in the relevant jurisdiction, until a superior court says otherwise. > [@](#): > > Not where the “precedent” is the case being considered, and not where it’s another case that addressed a different point. Technically speaking, a precedent only truly applies to a case presenting the precise issues of fact and law. In my old firm, for obscure reasons, we called these “green elevator” cases. But precedents are certainly applicable to different circumstances. In this case, where courts, including the Supreme Court, have held that a state has an interest in regulating marriage due to its interest in procreation and providing a stable environment for raising children, that interest will be recognized in other cases, even if the other cases address different issues as to marriage. > [@](#): > > I should have made that clearer. But precedents have to be applied according to their relevance. See above. > [@](#): > > Talk about judicial activism! No, the “ad hoc” comments I made were against the observation noted by **Bricker** that anything the state’s lawyer can dream up is something the legislature could have thought about (even if they patently didn’t) and is therefore acceptable. To us laymen, that’s called “making shit up”. That ain’t judicial activism, that’s the common law system. Most law is judge-made. You are really stuck on the fact that the legislature is not obligated to explain their rationale for laws. The reason is that laws are presumed constitutional. You don’t have to explain why you do something if what you do is presumed to be correct. > [@](#): > > In all the examples you list, there is a basis, even a rational one, for each of those legal restrictions. A minority number can be used, but it’s still a number. What would you suggest is the basis for excluding gays from marriage as a bright line? In fact, the government does not test any couple for fertility or the intent to procreate, even when it’s obvious that they don’t. Yet the “bright line” excludes gay couples who wish to adopt but not straight couples who wish to adopt. I thought that has already been made clear. The rationale is that the government has a legitimate interest in seeing more babies and having those babies brought up in a stable environment. To advance that interest, the government provides incentives to the establishment of a stable child-rearing environment, namely the legal benefits of marriage. Since procreation and child-rearing will most often take place when a man and a woman are the couple getting married, and will not often take place between persons of the same sex, the state has a legitimate interest in avoiding the losses it will suffer (lower tax receipts, increased Social Security and other benefit payouts, etc.) if it has to provide those benefits to a class of couples that are unlikely to proceate and raise children. The state does not have to test for fertility or the intent to procreate for two reasons. One, which I’ve already given, is that the government can establish bright lines. The second is that the cost of such testing and investigation would likely wipe out the benefits to the state of not having to provide marriage benefits to people unable or unwilling to procreate. > [@](#): > > I frickin’ keep trying to explain that where I’m stuck is NOT rationality but BASIS. The only bases offered _don’t_ meet the “non-insane reason” test, and I still argue that they don’t even meet the “existence” test, but perhaps YMMV. Well, I can’t help you there, because the basis has been provided. You refuse to accept the basis as “non-insane”, but the courts do accept it. Yes, YMMV, but at a certain point, you’re just being kooky. What you are really not accepting is the idea that “the law is what the judges say it is.” The judges have consistently, and for many decades, said that state’s interest in procreation and child-rearing is a rational basis to regulate marriage, including prohibiting certain categories of persons from marrying each other. You don’t like that, and to some extent I don’t like that, but the fact that we don’t like that doesn’t change the fact that that is what the law is. The way to fix a judge-made law you don’t like is to convince your legislature to change it. Until then, you are SooL. > [@](#): > > Of course. That’s why we have the commerce clause. 🙂 Yes, I know the MA SJC used due process instead. Sorry, wrong answer. the Massachusetts Supreme Judicial Court applied the Equal Protection clause … of the Massachusetts state Constitution. As the MassSupremes noted in _Goodrich_, even where the language of the state and federal constitution are the same, state precedent can give greater scope to the right at issue under the state constitution than is given under the federal constitution. Sua ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 6, 2005, 10:00pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/124 "2005-10-06T22:00:29Z")
> [@SuaSponte](#): > > Nope. There is no right to marry a particular individual. There is simply a right to marry. I’m sure you understand how silly a statement that is. > [@](#): > > In equal protection jurisprudence, determination of whether a group is a suspect class does not depend upon the particular issue. You is in a suspect class, or you ain’t. So no, homosexuals are not a suspect class, period. What I meant was that, in the other cases cited, sexuality was not relevant to the issue at question, so it’s no wonder that that was the ruling. In the case of marriage, it’s fundamental. Yes, I know that’s another case of “it hasn’t been ruled upon until it’s been ruled upon”. > [@](#): > > There ain’t gonna be legal recognition of the immutability of homosexuality until there is a scientific determination of that, if then. Maybe, maybe not. In the meanwhile, wouldn’t a massive amount of personal testimony, not to mention the judges’ being asked if they themselves could change their sexuality, result in that ruling, science notwithstanding? > [@](#): > > No, there is no Supreme Court case yet, but that doesn’t mean that those and other cases ain’t the law. They are the law, at least in the relevant jurisdiction, until a superior court says otherwise. Fer cryin’ out loud, I know that. I keep trying to say so. > [@](#): > > In this case, where courts, including the Supreme Court, have held that a state has an interest in regulating marriage due to its interest in procreation and providing a stable environment for raising children, that interest will be recognized in other cases, even if the other cases address different issues as to marriage. As it should be. The issue with SSM is how you get from there, assuming its existence, to banning marriage between 2 people who wish to provide a stable environment etc. on the basis of a characteristic irrelevant to the topic. That’s where the “non-insane reason” test, strict as it is, fails. > [@](#): > > That ain’t judicial activism, that’s the common law system. Most law is judge-made. I know that too. That statement was frankly a tweak to the anti-JA advocates reading this thread as well. > [@](#): > > You are really stuck on the fact that the legislature is not obligated to explain their rationale for laws. The reason is that laws are presumed constitutional. You don’t have to explain why you do something if what you do is presumed to be correct. Yet another case of “It hasn’t been ruled unconstitutional until it’s been ruled unconstitutional”, I’m afraid. Still circular. Yes, to a person looking to find the reasons for the legislature passing a law, it helps to examine that law and the record of debate behind it. Otherwise you’re just making shit up. > [@](#): > > Since procreation and child-rearing will most often take place when a man and a woman are the couple getting married, and will not often take place between persons of the same sex, the state has a legitimate interest in avoiding the losses it will suffer (lower tax receipts, increased Social Security and other benefit payouts, etc.) if it has to provide those benefits to a class of couples that are unlikely to proceate and raise children. It would be interesting to see if there is any data supporting that assertion. “Most often” children are born to straights because most people are straights. Most adopted children are adopted by straights because most gays aren’t allowed to adopt (to a lesser degree). The connection to the parents’ sexuality is not present anywhere I can see. > [@](#): > > The state does not have to test for fertility or the intent to procreate for two reasons. One, which I’ve already given, is that the government can establish bright lines. The second is that the cost of such testing and investigation would likely wipe out the benefits to the state of not having to provide marriage benefits to people unable or unwilling to procreate. The bright line test is simply a restatement of “The state has the authority”. As to the second item, how much is the cost of asking a couple “You guys planning to have kids?”. Please. > [@](#): > > You refuse to accept the basis as “non-insane”, but the courts do accept it. Yes, YMMV, but at a certain point, you’re just being kooky. I am aware that judges can be religious or moral ideologues, or subject to other prejudices, or simply ignorant on certain subjects, since they’re human, but that still doesn’t make a rationalization of a desired result (IOW making shit up) into an argument that can withstand a sanity test. The lamer the rationalization, the harder that is. > [@](#): > > What you are really not accepting is the idea that “the law is what the judges say it is.” Please. That is not only repetitive but a false attribution. OF FUCKING COURSE the law is what it is, _until it’s challenged and overturned_. That latter part is the process I’m trying to discuss. > [@](#): > > Sorry, wrong answer. the Massachusetts Supreme Judicial Court applied the Equal Protection clause … of the Massachusetts state Constitution. A concurring opinion (which IMHO was more convincing than the main opinion) did. The \*main \* opinion invoked due process, as I said. > [@](#): > > As the MassSupremes noted in _Goodrich_, even where the language of the state and federal constitution are the same, state precedent can give greater scope to the right at issue under the state constitution than is given under the federal constitution. And it’s no wonder that a state court would say that, having no jurisdiction to decide federal matters, although it certainly was written with the intent of influencing a federal court argument. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 6, 2005, 10:29pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/125 "2005-10-06T22:29:55Z")
So… where are we? **ElvisL1ves** , do you agree that as things now stand, analyzing a federal Equal Protection challenge to the issue of same-sex marriage bans results in upholding the ban? ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [October 6, 2005, 10:39pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/126 "2005-10-06T22:39:28Z")
> [@ElvisL1ves](#): > > I’m sure you understand how silly a statement that is. It is an accurate statement of the law. Silliness is a separate issue. > [@](#): > > What I meant was that, in the other cases cited, sexuality was not relevant to the issue at question, so it’s no wonder that that was the ruling. In the case of marriage, it’s fundamental. Yes, I know that’s another case of “it hasn’t been ruled upon until it’s been ruled upon”. ::sigh:: but is has been ruled upon. Homosexuals have repeatedly been found not to be a suspect class entitled to strict or intermediate scrutiny. I have provided you with cites to that effect. > [@](#): > > Maybe, maybe not. In the meanwhile, wouldn’t a massive amount of personal testimony, not to mention the judges’ being asked if they themselves could change their sexuality, result in that ruling, science notwithstanding? I doubt it. When trying to establish a characteristic is immutable, all you’d need is one sad soul whose been through “conversion therapy” or whatever that crap is called, to get on the stand and testify that he/she was gay but now isn’t. One gay person changes = not immutable. To overcome that testimony, you’d have to prove that that “formerly” gay person is actually still gay, and in denial. And for that, you need science. > [@](#): > > As it should be. The issue with SSM is how you get from there, assuming its existence, to banning marriage between 2 people who wish to provide a stable environment etc. on the basis of a characteristic irrelevant to the topic. That’s where the “non-insane reason” test, strict as it is, fails. But it is relevant to the topic. At the very least, it is difficult for a SSC to conceive a child. I don’t know the stats, but I doubt that the majority of SSC’s have or intend to have a child. Unless that is established, the state can legitimately have an interest in not expending its resources giving benefits bestowed with the intent of encouraging procreation and child-rearing to a group of persons who, as a whole, do not intend to procreate or child-rear. > [@](#): > > Yet another case of “It hasn’t been ruled unconstitutional until it’s been ruled unconstitutional”, I’m afraid. Still circular. Yes, to a person looking to find the reasons for the legislature passing a law, it helps to examine that law and the record of debate behind it. Otherwise you’re just making shit up. The correct statement is "It **is** constitutional until it has been ruled unconstitutional. A very different statement. Sure, it helps to look at the record of debate, but that is a secondary source for a very good reason. Senator X might get up and say that, “I’m voting for this bill because of A reason,” but Senator X is only one legislator. Many, even the majority of those who vote for a bill remain silent. And, of course, Senator Y may stand up and say, “I’m voting for this bill for Y reason.” Which is the rationale for the law? This very issue is one of the reasons I’m opposed to original intent. We have the opinions of certain of the FFs as to their interpretation of the Constitution, but we do not have the opinions of all of them, or even close to a majority of them. So we can’t figure out the real rationale and intent of the FFs. > [@](#): > > It would be interesting to see if there is any data supporting that assertion. “Most often” children are born to straights because most people are straights. Most adopted children are adopted by straights because most gays aren’t allowed to adopt (to a lesser degree). The connection to the parents’ sexuality is not present anywhere I can see. I was actually talking _pro rata_, not in absolutes. Ten years ago, when I wrote my article, I had these stats, and IIRC the percentage of commited SSC’s with kids was considerably lower than the percentage of commited DSC’s with kids (married or not), and the number of committed SSC’s with kids was well less than 50%. Ten years have gone by, but I doubt the stats have significantly changed. > [@](#): > > The bright line test is simply a restatement of “The state has the authority”. As to the second item, how much is the cost of asking a couple “You guys planning to have kids?”. Please. Not exactly sure what you mean. The bright line test means that the state does indeed have the authority to make laws of general application, without the need to carve out exceptions for a minority. As to the second item, if the result is that you don’t get the benefits of marriage, “you guys planning to have kids?” will simply result in a lot of couples lying. The investigation, to have any meaning, would have to be more instrusive - and therefore, more expensive - than that. > [@](#): > > I am aware that judges can be religious or moral ideologues, or subject to other prejudices, or simply ignorant on certain subjects, since they’re human, but that still doesn’t make a rationalization of a desired result (IOW making shit up) into an argument that can withstand a sanity test. The lamer the rationalization, the harder that is. Did you read my quote from _Kandu_? The judge hated the result he was obliged by law to reach. But, as he recognized, the rational relation test has been met. > [@](#): > > Please. That is not only repetitive but a false attribution. OF FUCKING COURSE the law is what it is, _until it’s challenged and overturned_. That latter part is the process I’m trying to discuss. But there is nothing to discuss. It’s been challenged, and it hasn’t been overturned. > [@](#): > > A concurring opinion (which IMHO was more convincing than the main opinion) did. The \*main \* opinion invoked due process, as I said. ::sigh:: I went and read the opinion, and the basis of the main opinion was the equal protection law of the Massachusetts state constitution. > [@](#): > > And it’s no wonder that a state court would say that, having no jurisdiction to decide federal matters, although it certainly was written with the intent of influencing a federal court argument. A state court has the jurisdiction to decide matters of federal law. Happens all the time. Watch a few episodes of Law & Order. When McCoy is up in front of the (state) judge arguing about whether X bit of evidence should be suppressed, he is arguing both federal and state law. Only if Congress has given exclusive jurisdiction over a particular matter of federal law to the federal courts are the state courts deprived of jurisdiction on that issue. Sua ---
**Author:** ![syriana\_fx](https://avatars.discourse-cdn.com/v4/letter/s/8c91f0/32.png) [@syriana\_fx](https://boards.straightdope.com/u/syriana_fx)\ **Post date:** [October 6, 2005, 11:18pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/127 "2005-10-06T23:18:09Z")
> [@SuaSponte](#): > > the state is allowed to make generalizations when enacting a law. … 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. :eek: Say it aint so! Doesn’t the rational basis at least have to be grounded in fact? Could a rational basis be that homosexuals cannot get married because, in general, they are psychotic? I’m assuming that my example wouldn’t fly, so I’m assuming that I must have misunderstood your answer. Bricker put forth the following rational basis: > [@Bricker](#): > > a primary purpose of government interest in regulating 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. To which Johm Mace presented the follwing hypothetical: > [@John Mace](#): > > 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? It would seem that in John’s scenario, the facts have changed in such a way that homosexual couples are **equally** capable of having biological offspring. Wouldn’t that invalidate Bricker’s rational basis? Wouldn’t that preclude the state’s use of the “generalization” that homosexual marriage is unrelated to procreation. Wouldn’t the change in technology at least require that the state come up with a new argument? I understand that finding another rational basis wouldn’t take long, but I was shocked by the idea that the state can come up with a “generalization” and then treat it as fact. Believe me, I could spout off a bunch of “generalizations” to justify pretty much any law you want to imagine. By the way, thanks Bricker and Suasponte for the primer on rational basis and thanks Elvisl1ves for pointing out how silly and arbitrary matters of law can sound to us laypersons. ---
**Author:** ![ENugent](https://avatars.discourse-cdn.com/v4/letter/e/4af34b/32.png) [@ENugent](https://boards.straightdope.com/u/ENugent)\ **Post date:** [October 6, 2005, 11:46pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/128 "2005-10-06T23:46:55Z")
> [@syriana fx](#): > > :eek: Say it aint so! Doesn’t the rational basis at least have to be grounded in fact? Could a rational basis be that homosexuals cannot get married because, in general, they are psychotic? Stay tuned this Supreme Court season for a possible answer to this one! Actually, the reason has to be grounded in legitimate facts. What’s not yet decided is whether it’s OK for the legislature to say “we have found the following facts,” without much more in the way of actual investigation, etc. That’s basically what they did in the so-called “partial birth abortion” ban: made an explicit finding that the procedure was never medically necessary. [That case](http://www.scotusblog.com/movabletype/archives/2005/09/governmen_appea.html) is up on cert now, and could be heard this session. While the issue is not discrimination, the answer to whether Congress can just “find” facts would probably apply. ---
**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 6, 2005, 11:53pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/129 "2005-10-06T23:53:11Z")
> [@SuaSponte](#): > > I doubt it. When trying to establish a characteristic is immutable, all you’d need is one sad soul whose been through “conversion therapy” or whatever that crap is called, to get on the stand and testify that he/she was gay but now isn’t. One gay person changes = not immutable. To overcome that testimony, you’d have to prove that that “formerly” gay person is actually still gay, and in denial. And for that, you need science. Looking at the problem scientifically, I think you’ve oversimplified things by calling conversion therapy “crap”. From all the evidence we have to date, it does appear that sexual orientation has a genetic component, but that it is not wholly determined by our genes. I don’t doubt for a minute that there are some people who can go back and forth from being straight to gay or bi and back again. The science is not exact, but it seems highly unlikely that sexual orientation is immutable. The idea that a good conversion therapist can change any gay person into a straight person is most likely crap. But there appears to be a spectrum of sexual orientation rather than discrete buckets. That will undoubtably confound the legal system for decades, at least. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 7, 2005, 1:32pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/130 "2005-10-07T13:32:50Z")
> [@Bricker](#): > > ElvisL1ves, do you agree that as things now stand, analyzing a federal Equal Protection challenge to the issue of same-sex marriage bans results in upholding the ban? No, because “as things now stand” _is_ the issue that would be decided in such a challenge. As things now stand, no, homosexuals are not a suspect class. But the case to decide that issue would be decided upon the basis of the reasons for their not being a suspect class. Once again, a case of “It hasn’t been ruled upon until it’s been ruled upon” > [@SuaSponte](#): > > It is an accurate statement of the law. Silliness is a separate issue. Just so we’re clear. > [@](#): > > I doubt it. When trying to establish a characteristic is immutable, all you’d need is one sad soul whose been through “conversion therapy” or whatever that crap is called, to get on the stand and testify that he/she was gay but now isn’t. Yeah, true - but it would be interesting to see, and I doubt we’ll have to wait long. > [@](#): > > At the very least, it is difficult for a SSC to conceive a child. I don’t know the stats, but I doubt that the majority of SSC’s have or intend to have a child. Unless that is established, the state can legitimately have an interest in not expending its resources giving benefits bestowed with the intent of encouraging procreation and child-rearing to a group of persons who, as a whole, do not intend to procreate or child-rear. That’s a restatement of the “non-insane” argument, and it’s still countered by the “It ain’t a reason at all” argument. Still circular. > [@](#): > > The correct statement is "It **is** constitutional until it has been ruled unconstitutional. A very different statement. And still not the point - we (or at least I) have been trying to discuss what the ruling for constitutionality would/will be _when it’s ruled upon_, not what the status quo is. Yet I keep getting useless lectures on the status quo. > [@](#): > > Sure, it helps to look at the record of debate, but that is a secondary source Sure, but it beats refusing to look at it at all. What exercises me, in case it still isn’t clear, is the intellectual dishonesty of the process of thrashing around looking for rationalizations; the process of a court’s issuing a ruling based on some shit they just made up for the purpose (or some shit somebody else made up and can thereby be labeled “precedent”). > [@](#): > > This very issue is one of the reasons I’m opposed to original intent. Generally, I agree with not considering it exclusively or even predominantly. The intent subsequent generations have in keeping a law in place is valid too, arguably increasingly so, and that intent can mutate over time. I did limit the things a responsible court should consider too strictly in hindsight; I meant that as just an example. The intent the government had in establishing marriage laws originally matters, in no small part because it also reflects societal attitudes at the time, but those attitudes do change and do require consideration to prevent the law from becoming tyrannical. In the case of sponsoring procreation, it would be instructive to consider if that had ever been a real outside-the-court reason, buttressed by any record of social commentary or polling data or what have you. Case cites that “The state has made the claim and the court agrees” are not illuminating. > [@](#): > > I was actually talking _pro rata_, not in absolutes. Ten years ago, when I wrote my article, I had these stats, and IIRC the percentage of commited SSC’s with kids was considerably lower than the percentage of commited DSC’s with kids (married or not), and the number of committed SSC’s with kids was well less than 50%. Ten years have gone by, but I doubt the stats have significantly changed. There are enough Dopers close enough to the subject that perhaps one can help us here. > [@](#): > > The bright line test means that the state does indeed have the authority to make laws of general application, without the need to carve out exceptions for a minority. Well, it’s the same existence test for a reason I keep bringing in. The other cases you cited have a “non-insane” connection between the characteristic being cut off by the bright line and the purpose of the law. > [@](#): > > As to the second item, if the result is that you don’t get the benefits of marriage, “you guys planning to have kids?” will simply result in a lot of couples lying. The investigation, to have any meaning, would have to be more instrusive - and therefore, more expensive - than that. That sort of stuff, people simply lying to get what they want, even a marriage certificate, happens all the time as it is. But ISTM the simple question still completes the state’s obligation. > [@](#): > > A state court has the jurisdiction to decide matters of federal law. Happens all the time. Watch a few episodes of Law & Order. Helluva cite there. 🙂 ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [October 7, 2005, 2:05pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/131 "2005-10-07T14:05:47Z")
This could go on forever, so I’m going to withdraw with the following two points: This “it hasn’t been ruled upon until it’s been ruled upon” is utter nonsense. I keep giving you cites of cases in which it has been ruled upon, but you still keep writing it. You admit that that is “as things now stand”, but it is as things now stand because it _has been ruled upon._ Look, the US Supreme Court has held that homosexuals are not a suspect class, and the rational relation test applied. _Romer v. Evans_ 517 U.S. 620 (1996). And even if the Supremes hadn’t ruled upon it, the rulings of lower courts are just as equally the law of the land. Second, you confuse “non-insane” with “stupid”. While you and I disagree with it, the concept that the government has a legitimate interest in limiting the benefits of marriage to groups that are more likely to procreate and raise children is not the result of magical thinking, schizophrenia, delusion, etc. Sua ---
**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 7, 2005, 2:44pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/132 "2005-10-07T14:44:12Z")
**Elvis’** claim boils down to the fact that SCOTUS could rule differently in the future. But that applies to anything. So, until and unless it does rule differently, what’s the point? This is not a blank slate on which the court has yet to weigh in. It’s an established precedent that would need to be overturned. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [October 7, 2005, 9:13pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/133 "2005-10-07T21:13:35Z")
Perhaps it might be noted that the issue is not whether two gay persons can marry each other – they certainly can, as it is at rock bottom a contract between two people – but whether a state may legitimately recognize such a marriage or refuse to do so. I think the Presumption of Constitutionality Doctrine comes into play here. Any court, and SCOTUS in particular, is obliged by its own judicial self-restraint to _presume_ the legal fiction that Congress or a state legislature is acting reasonably and within constitutional norms in enacting a matter of legislation. Like the presumption of innocence in a criminal case, this is not irrebutable but simply places the onus of proof on the party claiming a law to be unconstitutional. In the case of the “rational basis” test (which, by the way, is purely judge-made law, not anything found in the Constitution or statute), it matters not whether this is the best possible law, or the right way to deal with the issue, but rather whether a reasonable person, presented with the law, could see it as in some way advancing a legitimate governmental purpose, however poorly or creakily it may do so. When I first studied constitutional law, the rational basis test was tantamount to a gimme – a legislature would have to really strain at gnats and swallow camels to fail the rational basis test. Interestingly, the case that **Bricker** alludes to on page one of this thread is _Romer v. Evans_, the only time in which the Court has addressed equal protection with reference to sexual orientation. (_Lawrence_, I believe, depended on the _Romer_ analysis with regard to its brief consideration of equal protection.) But it is interesting for another reason: Colorado’s Amendment II **failed** the rational basis test. In essence, the Court said, a law which discriminates against gay people simply on the basis that they are gay people does not have a rational basis under the Constitution. The very case which defined the rational basis test as appropriate relative to sexual orientation itself made it clear that being gay is not a rational basis for discrimination. It would be most interesting to see what sort of arguments can be mustered to suggest that **any** opposite-sexes marriage not ruled out on the basis of existing marriage, consanguinity, etc., is deserving of state recognition, but that a state may legitimately rule out a same-sex marriage on some rational basis. There is no law mandating that a valid marriage must produce children of the partners’ own bodies, nor, I think, would such a putative law stand up under even the rational basis test. And I fail to see what other clear distinguishing feature other than the definition of humanity into two sexes itself distinguishes all possible same-sex marriages from all possible opposite-sex marriages. ---
**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 7, 2005, 9:35pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/134 "2005-10-07T21:35:39Z")
> [@Polycarp](#): > > There is no law mandating that a valid marriage must produce children of the partners’ own bodies, nor, I think, would such a putative law stand up under even the rational basis test. Why do you think a law like that wouldn’t stand up under the rational basis test? I think it almost certainly would. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 7, 2005, 9:40pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/135 "2005-10-07T21:40:09Z")
> [@Polycarp](#): > > It would be most interesting to see what sort of arguments can be mustered to suggest that **any** opposite-sexes marriage not ruled out on the basis of existing marriage, consanguinity, etc., is deserving of state recognition, but that a state may legitimately rule out a same-sex marriage on some rational basis. There is no law mandating that a valid marriage must produce children of the partners’ own bodies, nor, I think, would such a putative law stand up under even the rational basis test. And I fail to see what other clear distinguishing feature other than the definition of humanity into two sexes itself distinguishes all possible same-sex marriages from all possible opposite-sex marriages. I think your analysis was doing fine until this last paragraph. Of course there is no law mandating that a valid marriage must product children. However, such a law would certainly PASS the rational basis test in Equal Protection analysis. Why wouldn’t it? Please describe for me precisely why you believe a law mandating that every marriage must product children in order to enjoy recognition by the state would run afoul of the Equal Protection Clause. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [October 9, 2005, 6:10pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/136 "2005-10-09T18:10:25Z")
> [@Bricker](#): > > I think your analysis was doing fine until this last paragraph. Of course there is no law mandating that a valid marriage must product children. However, such a law would certainly PASS the rational basis test in Equal Protection analysis. Why wouldn’t it? > > Please describe for me precisely why you believe a law mandating that every marriage must product children in order to enjoy recognition by the state would run afoul of the Equal Protection Clause. I don’t know; would it? A law that prescribes that only those marriages which have resulted in children begotten and borne by the two partners in it are validly recognizable by the courts? The rational basis test is license for a judge to find some reason why a legislature might have passed something, but there are indeed limits. In fact, it smacks of judicial activism to apply that test. (See Justice O’Connor’s variant for an analysis of the problems with it.) In any case, that was an add-on; I’ll happily retract it from the rest of my discussion, which I’m gratified to see we are in agreement on. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [October 9, 2005, 7:36pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/137 "2005-10-09T19:36:52Z")
> [@John Mace](#): > > But there appears to be a spectrum of sexual orientation rather than discrete buckets. That will undoubtably confound the legal system for decades, at least. It’s been generally accepted for decades by those who aren’t blinded by prejudice (religious or otherwise) that sexual orientation is a continuum. That’s not even in dispute. However, that doesn’t mean that individuals slide up and down that continuum day to day…it merely means that some people are 100% gay and some people are 100% straight and some people are various mixtures of gay and straight (bisexual, in other words) to varying degrees. I don’t see what the existence of bisexuality has to do with the legal argument at all. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 9, 2005, 8:59pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/138 "2005-10-09T20:59:19Z")
> [@John Mace](#): > > **Elvis’** claim boils down to the fact that SCOTUS could rule differently in the future. But that applies to anything. So, until and unless it does rule differently, what’s the point? I don’t know how to make it clearer. The point is that they haven’t addressed SSM at all yet. If, or rather when, they’re effectively forced to, they’d have to find a basis for the ruling, a basis that hasn’t yet been ruled upon. That is what we, or at least some of us not including you, have been trying to discuss. > [@SuaSponte](#): > > Look, the US Supreme Court has held that homosexuals are not a suspect class, and the rational relation test applied. Romer v. Evans 517 U.S. 620 (1996). Better tell Polycarp and (by apparent agreement) Bricker, then. They say Romer found that it did NOT apply. > [@](#): > > Second, you confuse “non-insane” with “stupid”. Perhaps you could find clearer terms, then. Oh, wait, you’ve “withdrawn”. Pity. > [@](#): > > While you and I disagree with it, the concept that the government has a legitimate interest in limiting the benefits of marriage to groups that are more likely to procreate and raise children is not the result of magical thinking, schizophrenia, delusion, etc. Nor did I say it was. Just that it has bugger-all to do with the genders of the marriage partners, except as (once again) an ad hoc rationalization created for the purpose as part of the arguments in a case. ---
**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 9, 2005, 11:48pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/139 "2005-10-09T23:48:21Z")
> [@jayjay](#): > > It’s been generally accepted for decades by those who aren’t blinded by prejudice (religious or otherwise) that sexual orientation is a continuum. That’s not even in dispute. However, that doesn’t mean that individuals slide up and down that continuum day to day…it merely means that some people are 100% gay and some people are 100% straight and some people are various mixtures of gay and straight (bisexual, in other words) to varying degrees. > > I don’t see what the existence of bisexuality has to do with the legal argument at all. Thne you should go back over this thread and re-read all the stuff about the differentl levels of scrutiny applied by the court. Especially re: rational basis and how issues of sexual orientation are currently handled. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [October 9, 2005, 11:56pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/140 "2005-10-09T23:56:38Z")
> [@John Mace](#): > > Thne you should go back over this thread and re-read all the stuff about the differentl levels of scrutiny applied by the court. Especially re: rational basis and how issues of sexual orientation are currently handled. I’m not involved in the main argument in the thread at all. I was only clarifying that while there is a continuum of sexual orientation, individual people do not slide around on that continuum. So yes, there is such a thing as 80% hetero/20% homo, but that doesn’t mean that 80% of the time the person is straight and 20% of the time, he’s gay. It means that while his attraction is mostly for women, he is also attracted to some men. His orientation _does not change_. He is bisexual. He will always be bisexual. The fact that he is bisexual does not mean that sexual orientation is mutable. [Previous page](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307.md?page=6) [Next page](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307.md?page=8)