Let me say first that I think same-sex marriage should be legal. The same as interracial marriage is and should be. However, I am hearing allot that Prop 8 and others is taking away a right from a class of citizen. I don’t see it.
We define marriage, currently, between a man and a woman. We do not define it as a right. I see no reason not to define it between two consenting adults but apparently many states do. The US does not recognize legal polygamous marriages from other countries. It would not recognize foreign underage marriages. Marriage license are like drivers license. As long as you fit in that definition you have the right to apply.
Caveat - I do think there is the exact same defense that Loving had if the courts still find marriage a fundamental right. Or they could go with Baker v. Nelson.
Well, marriage is not mentioned in the Constitution.
However, the 9th Amendment states that not all rights people possess are enumerated in the Constitution. I would be willing to bet, if it came to court, that marriage would be deemed an unenumerated right.
That said even enumerated rights are restricted (you do not have an absolute right to free speech for instance). So, even if it is deemed a right the government may well see fit to restrict it to heterosexual marriages only. Whether that is an appropriate restriction under the Constitution is another matter and the subject of several debates already ongoing around here.
I am on your side but I think those opposed would say it never was a “right” originally and while you gained the right it was inappropriate so they are just putting homosexual couples back to where they were before.
True. And the SCOTUS said it was a fundamental right in Loving. Of course, that still doesn’t prevent states from limiting marriage between closely related individuals as well as polygamous marriages. So, the “right” has some limits. The key is defining what those limits are. Frankly, I think any objective look at homosexuality would conclude that SSM was as legitimate as OSM. Homosexuality isn’t a personal choice any more than gender is a personal choice.
Marriage itself isn’t a right, a hateful, undesirable person doesn’t have the “right” to get married, the same way he has the right to speak his mind. However, if he finds a willing partner, and chooses to marry that partner, he gets a wheelbarrow full of legal rights and protections, that are almost universally transferable to other legal jurisdictions.
He has the right to tap into that legal construct, that is the right that I want to be available to gay men and women. If there was no legal structure to marriage, if it was truly nothing more than a piece of paper awarded to you by your priest, and recognition within your church, I wouldn’t care.
Civil unions are a “separate but equal” solution. They may or may not confer all of the basic legal rights. They may or may not be transferable to other jurisdictions, kind of important if you want to move somewhere for a job, or travel. They can be altered or deleted entirely without affecting anyone who has a regular marriage. They’re “Marriage Lite”.
i agree. Which is the reason I don’t have a problem with SSM. I’m happy with civil unions too but I’m not effected by it. It still doesn’t make marriage a right as much as it is an arbitrary definition that has legal meaning.
When I see advocates for same-sex marriage try to frame the issue as one about “civil rights”—that homosexuals should have the same rights as heterosexuals, and that laws against same-sex marriage deprive people of their rights—I think that, while they might be correct, this is however the wrong approach, and unlikely to convince anyone who isn’t already convinced. In most societies throughout most of human history, men did not marry men and women did not marry women. Convincing conservatives of a natural right to do something that most societies have never allowed is an uphill battle.
My take on this would be “A right that the state always denied but which the courts finally acknowledged as existing”.
I believe that marriage is a fundamental right - one that exists whether explicitly written into a constitution or not.
Note that, for Americans, the authors of the US Declaration of Independance included “Life, Liberty and the pursuit of Happiness” as inalienable rights, but decided that only one of them needed any specific Constitutional mention. Clearly they felt that the other two were still rights even though they were not specifically mentioned.
That’s two of the three directly, and if you, as has generally been done when looking at classical rights theory, link “the pursuit of Happiness” with property, it’s all three.
Why is this relevant? The answer to your question has already been given. Under California law, gay people had the right to marry. Now they don’t. Ergo, Prop 8 stripped them of a right. If you want to argue that marriage shouldn’t be a fundamental right, go ahead. But it doesn’t matter w/r/t the question you asked. The issue in question isn’t whether marriage was a *fundamental *right. It’s whether gays had a right to get married. Indisputably, they did. Now, they don’t. Obviously, this means Prop 8 removed an existing right under California law.
While I would like the state to get out of the business of deciding who may couple with whom, I have a slight problem with the above. So long as it exists as a institution admninsterd by the state by the state, marriage is a right–simply one that cannot be exercised by anyone person. Put differently, all mentally competent adults should have the right to marry any other mentally competent adult who is willing to marry them.
I’m not certain if you mean “Skaldimus, are you saying polygamy should be legal?” or “Rhymerion, what if one of the parties is already married–should he or she be allowed to end the first marriage without consulting the current spouse?”
Or you mght be saying something I havne’t thought of to “Thenos.” Anyhow, if you’ll expand on what you mean, I will respond.
Look. The state always insisted same sex couples could not marry. It even was policy. The justices found a loophole for that right that the state never intended. It was corrected with prop 8. That is like a child upset that a parent made it get down from the tree after an older sibling said “go ahead,why not”. I am not trying to belittle the situation or state ssm is dangerous. I support it. But before the Justices found the new right it was prohibited. And everyone knew it.