# 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:** 8
**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, 11:58pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/141 "2005-10-09T23:58:40Z")
And, incidentally, while I’m loathe to do so, I agree with the people who are coming down on the side of “that’s the law right now”. I agree that it is the law right now. It shouldn’t be, but it is, and we have to live with that or change it, one way or another. But the status of sexual orientation as concerns levels of scrutiny isn’t relevant to an inaccurate (I assume unintentionally) representation of the continuum of orientation as an argument against the immutability of such orientation. ---
**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 10, 2005, 12:10am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/142 "2005-10-10T00:10:42Z")
> [@jayjay](#): > > And, incidentally, while I’m loathe to do so, I agree with the people who are coming down on the side of “that’s the law right now”. I agree that it is the law right now. It shouldn’t be, but it is, and we have to live with that or change it, one way or another. Agreed. > [@](#): > > But the status of sexual orientation as concerns levels of scrutiny isn’t relevant to an inaccurate (I assume unintentionally) representation of the continuum of orientation as an argument against the immutability of such orientation. But it’s more than that. It’s not at all clear that one’s location on the continuum is set by ones genes, or that many people don’t change locations on the continuum during their lives. That’s the point about immutability that is a sticking point for rational basis. If it could be determined that “xyz” combination of genes = gay, then the application of a higher level of scrutiny would be easy to justify. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [October 10, 2005, 12:33am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/143 "2005-10-10T00:33:06Z")
> [@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? And would it under Due Process? Or are you just dealing with the EP argument. Personally, as much as it pains me, I agree with Elvis that the Supreme Court would not uphold a law that only allows marriage between couples who procreate. Eisenstadt, Griswold, Roe, etc. all deal with the right of people to make their own procreative choices. A law that runs afoul of that would not pass the rational basis test. In addition, it’s pretty clear that procreation and marriage are not as inextricably linked as SSM opponents would want to believe. In many places, the inability or refusal to procreate is not grounds for divorce. In addition, many same sex partners become pregnant. Why is their decision to procreate not considered, if procreation is all important? Multiple marriage partners can indeed procreate, yet they’re not allowed. And, as an aside, I’ll point out that the procreative argument, while apparently appealling to many, is, in my opinion, nothing but legal bluster meant to justify the inexcusable mistreatment and discrimination against homosexuals. I’d have at least a modicum of respect for those who are honest enough to oppose same sex marriage because they hate homosexuality and homosexuals rather than hide behind this “it’s all about procreation” bullshit. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 10, 2005, 2:11am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/144 "2005-10-10T02:11:54Z")
> [@Hamlet](#): > > And would it under Due Process? Or are you just dealing with the EP argument. All of the discussion above is focused on EP. > [@](#): > > Personally, as much as it pains me, I agree with Elvis that the Supreme Court would not uphold a law that only allows marriage between couples who procreate. They almost certainly wouldn’t. But I highly doubt they would invalidate it on an Equal Protection argument. And I think you agree with me. This is much more vulnerable to resolution as a due process violation than it is an equal protection violation. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [October 10, 2005, 2:28am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/145 "2005-10-10T02:28:12Z")
> [@Bricker](#): > > All of the discussion above is focused on EP. Your evasions would make Bush proud. > [@Bricker](#): > > They almost certainly wouldn’t. But I highly doubt they would invalidate it on an Equal Protection argument. A legal distinction between fertile and infertile (whether by biology or by choice) couples would certainly be interesting. If I remember correctly, a person’s status as born out of wedlock or not is subject to intermediate scrutiny, is it not? Seems to me that the logic would apply to fertility, but what do I know. > [@Bricker](#): > > And I think you agree with me. This is much more vulnerable to resolution as a due process violation than it is an equal protection violation. Certainly I’d agree with that. I just didn’t know we had confined the issue of constitutionality to just equal protection. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 10, 2005, 2:49am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/146 "2005-10-10T02:49:57Z")
> [@Hamlet](#): > > Certainly I’d agree with that. I just didn’t know we had confined the issue of constitutionality to just equal protection. I only mention equal proection about fifty zillion times above. And I never mention due process until you ask about it. How it escaped your attention until now is a mystery. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [October 10, 2005, 2:55am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/147 "2005-10-10T02:55:58Z")
> [@Bricker](#): > > I only mention equal proection about fifty zillion times above. And I never mention due process until you ask about it. > > How it escaped your attention until now is a mystery. I apologize for thinking that the thread must only be discussed according to your terms. My bad. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 10, 2005, 5:35am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/148 "2005-10-10T05:35:14Z")
> [@Hamlet](#): > > I apologize for thinking that the thread must only be discussed according to your terms. My bad. Again I’m mystified. There’s no reason not to discuss other aspects of constitutional protection or prohibition of same-sex marriage. Discuss away. All I’m saying is the proposition _I_ advanced, and the one I was explaining in minute detai and defending tooth and nail, was the Equal Protection argument. I carefully explained that when I started my discussion, and mentioned it repeatedly thereafter. That’s all I’m talking about. I’m not suggesting anyone else limit their conversation to that topic – I’m just limiting my own conversation to that topic. ---
**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 10, 2005, 6:12am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/149 "2005-10-10T06:12:13Z")
> [@Bricker](#): > > I’m honestly curious. > > What happened to your eyes, or inside your head, when you came to post #71? Did you just sort of skim over it? Did you read it thoroughly but not understand it? Did you get partway through it and decide to skip the rest? > > I’m hoping your answers will help me write more effectively for this board in the future. For you and John Mace, I’m not arguing the rational basis test (at least in the way you seem to think), but rather two other points: One, the fallicious argument - Marriage should serve to promote procreation Homosexual couples cannot have children Therefore homosexual couples should not get married This is the fallacy known as Denying the Antecedent so that even if there were a state interest in having children born in wedlock, this argument does not create a relationship between homosexual marriage and the state interest. Two, is using marriage to promote procreation truly a state interest or a facade? This is why I raise the issue of sterile couples. If there is a movement to ensure that all married couples can procreate, why is there no discussion in any state legislature in preventing other couples that cannot reproduce from getting married. In fact, California has \*\*eliminated \*\* a law that nullified a marriage if one spouse was sterile and did not informed the other. I know that a court can rule that a claimed state interest does not exist, but I don’t if a court can tell the state, “Due to the inconsistancy in implementing this “state interest”, we know you’re lying when you say couples who cannot procreate shouldn’t get married.” ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 10, 2005, 10:27am UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/150 "2005-10-10T10:27:14Z")
> [@](#): > > Two, is using marriage to promote procreation truly a state interest or a facade? This is why I raise the issue of sterile couples. If there is a movement to ensure that all married couples can procreate, why is there no discussion in any state legislature in preventing other couples that cannot reproduce from getting married. In fact, California has \*\*eliminated \*\* a law that nullified a marriage if one spouse was sterile and did not informed the other. I know that a court can rule that a claimed state interest does not exist, but I don’t if a court can tell the state, “Due to the inconsistancy in implementing this “state interest”, we know you’re lying when you say couples who cannot procreate shouldn’t get married.” The response you mention is not possible in Equal Protection analysis under the rational basis test, because state inconsistency in implementation is not a fatal flaw. If intermediate scrutiny were being applied, then the court can examine how well the law actually implements the claimed goal. As to your point about affirming the consequent… apply that same argument to drivers license age rules, and tell me what happens. Note: I’m absolutely not denying that the fallacy is present in the argument. I’m asking you to realize that it’s commonplace in legislation. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [October 10, 2005, 2:57pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/151 "2005-10-10T14:57:30Z")
I rather liked Archibald Cox’s example of a valid state interest: “The state has not only the right but the duty to discriminate against blind people in the issuing of licenses to drive motor vehicles.” **Bricker** , from your exchange with **Hamlet** above, I note that you see the courts as likely to reverse my hypothetical fertility law on _due process_ grounds. But I fail to see where the reversible flaw would be procedural in nature. Hence that would be SDP, which I am aware gives you the galloping horrors. (And having read a little of the Four Horsemen and a few Gilded Era cases, I do understand why. Like fire, SDP is a useful servant and a dangerous master.) Would you elaborate on how you’d address the issue a bit? ---
**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 10, 2005, 3:37pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/152 "2005-10-10T15:37:32Z")
> [@Bricker](#): > > The response you mention is not possible in Equal Protection analysis under the rational basis test, because state inconsistency in implementation is not a fatal flaw. > > If intermediate scrutiny were being applied, then the court can examine how well the law actually implements the claimed goal. > > As to your point about affirming the consequent… apply that same argument to drivers license age rules, and tell me what happens. Note: I’m absolutely not denying that the fallacy is present in the argument. I’m asking you to realize that it’s commonplace in legislation. You lawyers could make things a lot easier to understand if you renamed the “rational basis test” and called it “make up any ol’ excuse test” instead. 🙂 ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [October 10, 2005, 3:47pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/153 "2005-10-10T15:47:17Z")
> [@John Mace](#): > > You lawyers could make things a lot easier to understand if you renamed the “rational basis test” and called it “make up any ol’ excuse test” instead. 🙂 But that would violate the First Canon of the Bar: “Whenever possible, obfuscate!” 😉 ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 10, 2005, 3:54pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/154 "2005-10-10T15:54:33Z")
> [@John Mace](#): > > You lawyers could make things a lot easier to understand if you renamed the “rational basis test” and called it “make up any ol’ excuse test” instead. 🙂 I’ve tried hard to make that point, believe me, I’ve tried. Maybe you can have better luck. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [October 10, 2005, 4:16pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/155 "2005-10-10T16:16:41Z")
Thank goodness. I sort of backed away from this thread, thinking I was just dense and didn’t get it. The phrase “make up any ol’ excuse test” sounds about right. So then, assuming that gays are not a “suspect group”, or mentally/morally deficient, or have criminal tendencies, and straights who are infertile can get married (or can marry for money e.g.), then what would be a true (not a fake) rational basis (meaning based on a truly rational and valid reason) for denying gays equal standing? The reason many are not satisfied with civil unions is because they are all too aware of the way “separate but equal” has worked in the past. They invoke right to privacy because they believe their private life (who to live with etc) as being interfered with. Right to privacy was one of THE big issues in Lawrence vs Texas (?). Gay marriage is being described as unconstitutional because it is not specifically mentioned in the constitution. But many other things were not specifically mentioned either. Was a federal income tax part of what the Foundering Fathers wrote long ago? How about Prohibition? How about Homeland Security? The Tennessee Valley Authority? The FBI and CIA? It isn’t about the “sanctity of marriage”. Some of the most vocal proponents of that have been divorced. It isn’t about procreation. Many married people either can’t have children or don’t want children. It isn’t about defending marriage. Straights are already making a mockery out of it. It isn’t for the children. There are far too many horror stories about child abuse in so-called marriages. So what is the real reason? Religiosity, ignorance, prejudice and hypocrisy. Maybe some of the noisiest “pro marriage” people need to have their own dirty laundry dragged out in public. Divorcers, child beaters, wife beaters, philanderers and adulterers, abusive drunks, people who default on child support, and any closeted gays who help them. Maybe we need one muthah of an outing party. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 10, 2005, 4:19pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/156 "2005-10-10T16:19:18Z")
> [@Polycarp](#): > > **Bricker** , from your exchange with **Hamlet** above, I note that you see the courts as likely to reverse my hypothetical fertility law on _due process_ grounds. But I fail to see where the reversible flaw would be procedural in nature. Hence that would be SDP, which I am aware gives you the galloping horrors. (And having read a little of the Four Horsemen and a few Gilded Era cases, I do understand why. Like fire, SDP is a useful servant and a dangerous master.) Would you elaborate on how you’d address the issue a bit? I expect the courts would look at your hypo as violative of the test laid out in _Palko v. Connecticut_ and/or _Moore v. East Cleveland_. The first case gave us the protection of “fundamental liberties” that are “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if [they] were sacrificed.” The second gave us the test that asks if the liberty interest in question was “'deeply rooted in this Nation’s history and tradition”. Both of these are, as you suggest, substantive due process analytical tools. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [October 10, 2005, 4:26pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/157 "2005-10-10T16:26:56Z")
> [@Bricker](#): > > I expect the courts would look at your hypo as violative of the test laid out in _Palko v. Connecticut_ and/or _Moore v. East Cleveland_. The first case gave us the protection of “fundamental liberties” that are “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if [they] were sacrificed.” The second gave us the test that asks if the liberty interest in question was “'deeply rooted in this Nation’s history and tradition”. Both of these are, as you suggest, substantive due process analytical tools. Why not go straight to Loving and Zablocki? Didn’t those hold marriage is a fundamental right? ---
**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 10, 2005, 4:40pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/158 "2005-10-10T16:40:46Z")
> [@Hamlet](#): > > Why not go straight to Loving and Zablocki? Didn’t those hold marriage is a fundamental right? Marriage, as in one man and one woman. I can’t imagine anyone giving serious thought to marriage meaning anything else back then. But even so, it was not a very intelligent thing to say. States could decline to recognize any and all types of marriages, and the feds would not be in a position to force them to, as they would with a real fundamental right (such as free speech). Is that not so? In the context of that time, too, the idea of “living in sin” just wasn’t social acceptable. IIRC, in some states it was actually illegal. So, marriage was often the only option a couple had. I’m not sure that would have much legal merit, but it does help understand how people thought about marriage 30 or 40 years ago. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 10, 2005, 4:41pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/159 "2005-10-10T16:41:36Z")
> [@Hamlet](#): > > Why not go straight to Loving and Zablocki? Didn’t those hold marriage is a fundamental right? I was focusing on more the “forced” fertility component of **Polycarp** ’s hypo. I think Loving is inapposite. It resolved the issue by simple application of the Equal Protection Clause: > [@](#): > > There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause. It then went on to say that the Due Process Clause was also violated. But note well WHY: > [@](#): > > Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [October 10, 2005, 5:02pm UTC](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307/160 "2005-10-10T17:02:52Z")
> [@John Mace](#): > > Marriage, as in one man and one woman. I can’t imagine anyone giving serious thought to marriage meaning anything else back then. And before then, marriage was between one man and one woman of the same race. And before then marriage was between one man and one piece of property. And before then, marriage was between one landowner and one person of equal class. Marriage is, from the government’s point of view, a simple contractual relationship, a simple licensing law. Consistently changing the definition of marriage to exclude those you don’t like (race in loving, those with outstanding child support debts in Zablocki, and now same sex partners, undermines what marriage really is. > [@john Mace](#): > > In the context of that time, too, the idea of “living in sin” just wasn’t social acceptable. IIRC, in some states it was actually illegal. So, marriage was often the only option a couple had. I’m not sure that would have much legal merit, but it does help understand how people thought about marriage 30 or 40 years ago. But in 1977, the Supreme court said: > [@](#): > > In evaluating 245.10 (1), (4), (5) under the Equal Protection Clause, “we must first determine what burden of justification the classification created thereby must meet, by looking to the nature of the classification and the individual interests affected.” Memorial Hospital v. Maricopa County, 415 U.S. 250, 253 (1974). Since our past decisions make clear that the right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, we believe that “critical examination” of the state interests advanced in support of the classification is required and > [@](#): > > Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals. Long ago, in Maynard v. Hill, 125 U.S. 190 (1888), the Court characterized marriage as “the most important relation in life,” id., at 205, and as “the foundation of the family and of society, without which there would be neither civilization nor progress,” id., at 211. In Meyer v. Nebraska, 262 U.S. 390 (1923), the Court recognized that the right “to marry, establish a home and bring up children” is a central part of the liberty protected by the Due Process Clause, id., at 399, and in Skinner v. Oklahoma ex rel. Williamson, supra, marriage was described as “fundamental to the very existence and survival of the race,” 316 U.S., at 541 . > More recent decisions have established that the right to marry is part of the fundamental “right of privacy” implicit in the Fourteenth Amendment’s Due Process Clause. In Griswold v. Connecticut, 381 U.S. 479 (1965), the Court observed: > “We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.” Id., at 486. > > See also id., at 495 (Goldberg, J., concurring); id., at 502-503 (WHITE, J., concurring in judgment). [Previous page](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307.md?page=7) [Next page](https://boards.straightdope.com/t/is-gay-marriage-unconstitutional/324307.md?page=9)