# Is there a constitutional right to same sex marriage? **URL:** \ **Category:** Great Debates\ **Created:** [May 16, 2008, 10:50pm UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-same-sex-marriage/449608 "2008-05-16T22:50:02Z")\ **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:** [May 21, 2008, 2:52am UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-same-sex-marriage/449608/81 "2008-05-21T02:52:32Z")
[QUOTE=Polycarp] I am not **Hamlet** , nor was meant to be. But let me offer you my own perspective. It consists in two parts: the “reasonable man” concept and the classic _ad absurdam_ text from logic. If it is alleged that N is a right, then analyze this by contemplating whether either the founding fathers or a consensus of present-day reasonable men would have contemplated a law prohibiting N completely. If it becomes clear to think that the prohibition of N is something people then or now would not have stood for, N is a right. May it be regulated? Yes, under the standards of Footnote Four and the scrutiny levels tests. And define N carefully: e.g., what is being claimed is not the right to say “Fuck the Army” but the right to protest what the Army is doing, not the right to gay marriage, but the right to freely contract marriage to the willing unencumbered adult partner of one’s choice. Not the right to collect some form of benefits a Wisconsin resident, but the right to establish residence in Wisconsin. [/QUOTE] If I select nine Supreme Court justices, they will reach certain conclusions about what “a consensus of of present-day reasonable men” think. Those conclusions will be vastly different than those reached by the nine Supreme Court justices selected by Dennis Kucinich. And because those nine justices are all serving in lifetime appointments, I wonder if you really have thought through what it means to hand them the power to declare rights based on their view of “a consensus of of present-day reasonable men.” You might be happy with the conclusions reached by Kucinich’s nine, but not so thrilled with mine. Doesn’t it make more sense to vest the power to make sweeping changes in law and social polict to a body that’s responsible to the electorate? I don’t see how we are truly iving up to the notion that we are self-governed, otherwise. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 21, 2008, 2:55am UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-same-sex-marriage/449608/82 "2008-05-21T02:55:20Z")
[QUOTE=Hamlet] Me? I’d go with the “Whatever Hamlet says” test. Seriously though, I’m a big fan of the writings of Randy Barnett, including [the presumption of liberty.](http://randybarnett.com/26val419.htm) You could, if you like, also use the 200 years of caselaw as a guide, that’s one reason it’s there. The “concept of ordered liberty” or “matters so fundamentally affecting a person” can be a good start also. [/QUOTE] Those are good starts, no doubt. And I like those guideposts much better than the “consensus of of present-day reasonable men.” But my question to \*_Polycarp_ still holds. When the power to enact sweeping change is vested in unelected judges, how can we truly say we’re living up to the ideal of self-governance? ---
**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:** [May 21, 2008, 2:56am UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-same-sex-marriage/449608/83 "2008-05-21T02:56:51Z")
[QUOTE=Bricker] Doesn’t it make more sense to vest the power to make sweeping changes in law and social polict to a body that’s responsible to the electorate? I don’t see how we are truly iving up to the notion that we are self-governed, otherwise. [/QUOTE] Doesn’t it make more sense to vest the power to protect our rights from the actions of the majority to… oh I don’t know… not the majority? Kinda like how the founders created a nation with checks and balances. ---
**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:** [May 21, 2008, 2:59am UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-same-sex-marriage/449608/84 "2008-05-21T02:59:30Z")
[QUOTE=Bricker] Those are good starts, no doubt. And I like those guideposts much better than the “consensus of of present-day reasonable men.” [/quote] Glad you like it. > [@Bricker](#): > > But my question to \*_Polycarp_ still holds. When the power to enact sweeping change is vested in unelected judges, how can we truly say we’re living up to the ideal of self-governance? When you give the ultimate power to the people, who can amend the Constitution. Otherwise, it’s just mob rule, which is not what the founders envisioned. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [May 21, 2008, 4:17am UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-same-sex-marriage/449608/85 "2008-05-21T04:17:36Z")
So, **Shodan** , you have no rights unless a majority of voters at a referendum agrees you do? Note we’re speaking of rights, not the license to do something which may be granted discretionarily. For example, you have no right to fly a plane, drive a school bus, or broadcast clear channel on your own radio station; those are things you may be licensed to do. Now, do you have a right to marry – not necessarily an inviolable right to marry anyone or anything you choose, but the basic right to contract marriage, which may not be deprived you, even by popular referendum? ---
**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:** [May 21, 2008, 4:27am UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-same-sex-marriage/449608/86 "2008-05-21T04:27:56Z")
[QUOTE=Antinor01] However, I believe the correct US constitutional answer is that it should be left to the states since marriage is not an issue the constitution reserves to the federal government and the 10th amendment says powers not reserved to the US are reserved to the states. [/QUOTE] If there is no constitution claim to a federal definition of marriage outside of the sovereign states’ individual definition, then how come the IRS can invalidate a same-sex married couple from Massachusetts from filing as married? ---
**Author:** ![Antinor01](https://avatars.discourse-cdn.com/v4/letter/a/ecae2f/32.png) [@Antinor01](https://boards.straightdope.com/u/Antinor01)\ **Post date:** [May 21, 2008, 5:35am UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-same-sex-marriage/449608/87 "2008-05-21T05:35:43Z")
[QUOTE=Saint Cad] If there is no constitution claim to a federal definition of marriage outside of the sovereign states’ individual definition, then how come the IRS can invalidate a same-sex married couple from Massachusetts from filing as married? [/QUOTE] I’m not enough of an expert to weigh in on the constitutionality of what happened, but DOMA (the federal one) is where they get the authority. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [May 21, 2008, 12:12pm UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-same-sex-marriage/449608/88 "2008-05-21T12:12:14Z")
[QUOTE=Polycarp] So, **Shodan** , you have no rights unless a majority of voters at a referendum agrees you do? [/QUOTE] Funny, I could have sworn I posted the following - > [@](#): > > And, just to clarify, I believe the default of the Constitution is not that the feds may not prohibit unless the Constitution says they may. The default is that the feds may not act at all unless the text of the Constitution says they may. And this applies to all branches of government. Oh well. **Shodan** ’s rule of thumb remains the same. > [@Hamlet](#): > > And, once again, that flies in the face of the 9th Amendment. Just thought I’d point that out, again. No, actually it does not. It is fully in accordance with both the Ninth and the Tenth Amendments. Especially the Tenth, which states quite clearly who has these unenumerated rights. Can the class guess who that is? Hint: it is not the Supreme Court. > [@Hamlet](#): > > Kinda like how the founders created a nation with checks and balances. OK, so our rights are whatever the Supreme Court says they are. What is the check on the power of judges? Amend the Constitution? Don’t be absurd - if the Supremes get to ignore the Tenth Amendment, then they get to ignore any subsequent. Regards, Shodan ---
**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:** [May 21, 2008, 12:47pm UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-same-sex-marriage/449608/89 "2008-05-21T12:47:52Z")
[QUOTE=Shodan] Funny, I could have sworn I posted the following - Oh well. **Shodan** ’s rule of thumb remains the same.No, actually it does not. It is fully in accordance with both the Ninth and the Tenth Amendments. [/quote] How, in your mind, do you reach this conclusion? Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Shodan: Other rights retained by the people that are not enumerated are without Constitutional protection. I’m not seeing any “accordance”, only direct conflict. You can’t get much more disparaging of a right of the people than not protecting it because it isn’t enumerated. > [@Shodan](#): > > Especially the Tenth, which states quite clearly who has these unenumerated rights. You have to go to the 10th for that? The Ninth says it. RETAINED BY THE PEOPLE. The 10th is, oddly enough, a different amendment that deals with, oddly enough, a different thing. Federalism and the rights of the people are two different things. > [@Shodan](#): > > OK, so our rights are whatever the Supreme Court says they are. That’s not what I said. Congress is certainly empowered to create, and in some cases, limit our rights also. The Supreme Court is also empowered to protect our rights. > [@Shodan](#): > > What is the check on the power of judges? Amend the Constitution? Don’t be absurd - if the Supremes get to ignore the Tenth Amendment, then they get to ignore any subsequent. Sorry that you find the Constitution to be “absurd.” ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [May 21, 2008, 1:04pm UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-same-sex-marriage/449608/90 "2008-05-21T13:04:01Z")
[QUOTE=Hamlet] How, in your mind, do you reach this conclusion? [/quote] Logic. Try it some time. > [@](#): > > You have to go to the 10th for that? The Ninth says it. RETAINED BY THE PEOPLE. The 10th is, oddly enough, a different amendment that deals with, oddly enough, a different thing. Federalism and the rights of the people are two different things. Well, since you are pretending not to know what the Tenth Amendment says, here it is - > [@](#): > > The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Deciding which rights really exist but are un-enumerated is a power. That power is not delegated to the United States government by the Constitution. The Supreme Court is part of the government. Therefore the Supreme Court does not have that power. QED. Regards, Shodan ---
**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:** [May 21, 2008, 1:16pm UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-same-sex-marriage/449608/91 "2008-05-21T13:16:02Z")
[QUOTE=Shodan] Logic. Try it some time. [/quote] Figures. I ask you to support an untenable argument and get an insult. Up to your usual standard of pathetic debating, I see. > [@Shodan](#): > > Well, since you are pretending not to know what the Tenth Amendment says, here it is -Deciding which rights really exist but are un-enumerated is a power. I’ve heard your … quaint … view of the 10th and judicial review, but once again, you never support it. The judicial power includes judicial review, including the balancing of rights against the powers of the government. That power is specifically given to the Supreme Court, and the lesser courts. If you believe that the Supreme Court is empowered to protect our enumerated rights, say like the 2nd Amendment, from governmental intrusion, that power must extend to unenumerated rights also (see the 9th Amendment). Now, if you believe that the judiciary has no power whatsoever to find any statute unconstitutional as a violation of a person’s right, have at it. But pretending that the 10th somehow stops the judiciary from exercising its Constitutionally granted powers is just silly. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [May 21, 2008, 1:18pm UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-same-sex-marriage/449608/92 "2008-05-21T13:18:53Z")
I see you decided not to try it. Regards, Shodan ---
**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:** [May 21, 2008, 1:31pm UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-same-sex-marriage/449608/93 "2008-05-21T13:31:10Z")
[QUOTE=Shodan] I see you decided not to try it. Regards, Shodan [/QUOTE] I think your nigh but pathological need to engage in petty insults and unwillingness to support your assertions says volumes about your position. It also speaks volumes about you. ---
**Author:** ![plnnr](https://avatars.discourse-cdn.com/v4/letter/p/7ea924/32.png) [@plnnr](https://boards.straightdope.com/u/plnnr)\ **Post date:** [May 21, 2008, 2:10pm UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-same-sex-marriage/449608/94 "2008-05-21T14:10:00Z")
Under what set of facts would (or could) the SCOTUS decide the issue of whether same sex marriage is a fundamental right protected by the Constitution? In other words, what has to happen to give the Supremes the opportunity to decide the issue? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [May 21, 2008, 2:10pm UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-same-sex-marriage/449608/95 "2008-05-21T14:10:59Z")
That would be an _ad hominem_ - the notion that my position is invalidated by your dislike for me. A logical fallacy, in other words. If that is all you got, have a peachy day. Regards, Shodan ---
**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:** [May 21, 2008, 2:17pm UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-same-sex-marriage/449608/96 "2008-05-21T14:17:36Z")
[QUOTE=Shodan] That would be an _ad hominem_ - the notion that my position is invalidated by your dislike for me. A logical fallacy, in other words. [/quote] Actually, my responses, combined with your complete inability to defend and insistent refusal to support, your position are what invalidates it. My dislike for you is mainly because you constantly insist on only offering petty insults and never actually engage in honest debate. So, while it is true I dislike you and your inane posting style, it has nothing to do with the wrongness of your position. But, as you are want to do, you would rather engage in insults and pretend you’re oppressed rather than deal with the issues. Good luck with that. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [May 21, 2008, 3:47pm UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-same-sex-marriage/449608/97 "2008-05-21T15:47:18Z")
[QUOTE=Shodan] That would be an _ad hominem_ - the notion that my position is invalidated by your dislike for me. A logical fallacy, in other words. Regards, Shodan [/QUOTE] You’re right. Your position is not invalidated by \*\*Hamlet’\*\*s dislike for you. Its invalidity rests on much better logical grounds than that. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [May 21, 2008, 3:54pm UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-same-sex-marriage/449608/98 "2008-05-21T15:54:40Z")
[QUOTE=Polycarp] You’re right. Your position is not invalidated by \*\*Hamlet’\*\*s dislike for you. Its invalidity rests on much better logical grounds than that. [/QUOTE] Perhaps you’d like to take a crack at actually addressing the syllogism instead of pretending it doesn’t exist - > [@](#): > > Deciding which rights really exist but are un-enumerated is a power. That power is not delegated to the United States government by the Constitution. The Supreme Court is part of the government. Therefore the Supreme Court does not have that power. QED. Or, failing that, you could address the distinction between “the government has no rights unless the Constitution says so” and “people have no rights unless the Constitution says so”. Just to help you along, the first is what I said; the second is what you claim I said. As I recall, I explained this to you once or twice or three times before. Maybe it will stick this time. Regards, Shodan ---
**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:** [May 21, 2008, 4:04pm UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-same-sex-marriage/449608/99 "2008-05-21T16:04:24Z")
[QUOTE=Shodan] Perhaps you’d like to take a crack at actually addressing the syllogism instead of pretending it doesn’t exist [/quote] I did. You didn’t listen or respond. As you are wont to do, you simply plugged your proverbial ears and responded instead with petty insults. The power to determine rights IS enumerated, it’s the judicial power, granted to the Supreme Court in the Constitution. And, as I said already: “If you believe that the Supreme Court is empowered to protect our enumerated rights, say like the 2nd Amendment, from governmental intrusion, that power must extend to unenumerated rights also (see the 9th Amendment). Now, if you believe that the judiciary has no power whatsoever to find any statute unconstitutional as a violation of a person’s right, have at it. But pretending that the 10th somehow stops the judiciary from exercising its Constitutionally granted powers is just silly.” ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [May 21, 2008, 4:43pm UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-same-sex-marriage/449608/100 "2008-05-21T16:43:58Z")
> [@](#): > > The power to determine rights IS enumerated, it’s the judicial power, granted to the Supreme Court in the Constitution. OK, then all you need to do is cut and paste where it says that in the Constitution. Something roughly equivalent to “The Supreme Court shall be granted the power to determine what are the unenumerated rights mentioned in the Ninth Amendment”. And just as a gentle hint, the Ninth Amendment does not mention the Supreme Court. Regards, Shodan [Previous page](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-same-sex-marriage/449608.md?page=4) [Next page](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-same-sex-marriage/449608.md?page=6)