# Massachusetts court strikes gay marriage ban: Finds "no rational basis" for law. **URL:** \ **Category:** Great Debates\ **Created:** [November 18, 2003, 4:29pm UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921 "2003-11-18T16:29:00Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 19, 2003, 5:43am UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/81 "2003-11-19T05:43:57Z")
> [@](#): > > \*Originally posted by Dogface \* > \*\*It is not what we already have, otherwise there would be no controversy over the matter. There would be no intrusion of religious doctrine. So long as the state in charge of determining who is “really married”, the problem will exist. \*\* No, I think the controversy is caused by the confusion of the civil and religious aspects of marriage, compounded by use of the same word in both contexts. It may also be compounded by the state’s common deputization of clergy to perform the legal function simultaneously with the religious ceremony. Perhaps you recall your own wedding, signing the certificate that began your legal contract with your wife at the same time you signed the church’s own register. That didn’t make it a single transaction, it was still 2 separate but simultaneous things. As I said, a church can consider you married, but if the proper paperwork isn’t on file with the state, you don’t have the _legal_ status. Or you could go see the judge, and a few minutes later you’ll be legally married, but no church need be involved. To use an extreme case, a splinter Mormon church can happily marry you to a second and third wife, but no state would recognize that and none would grant your extra wives the same status as the first when your will is read. At another extreme, if you’re a mainstream Catholic then legally divorcing your wife does not end your church marriage, and they won’t marry you again without death or annulment - but the state doesn’t care about that; legally you’re divorced. Nothing the government does can affect what a church considers the status of a couple to be, and nothing in this ruling does, either. It is only the civil, legal aspects of marriage that are under the purview of the courts and legislatures, just as the churches have full control of the religious aspects of it. The civil, legal aspects of marriage could be renamed “domestic unions” or anything else. But that legal institution does exist, and must exist, and if you get this far you have to say that everyone is entitled to participate in the legal institution that entails all those legal rights and responsibilities that the church has no influence over. But your church can make whatever rules it wants about who it will marry, and that will not and cannot change with this, so you can stop worrying about it. This is entirely a legal and political topic, not a religious one except to the extent that one’s religious views affect one’s political views. Okay? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 19, 2003, 5:44am UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/82 "2003-11-19T05:44:50Z")
> [@](#): > > \*Originally posted by Bricker \* > [T]here are plenty of conservatives who believe that small government is best, and therefore being gay or straight and who you choose to marry is no business of government’s. :snort: Sure, in the same sense that there are plenty of liberals who voted for Nader. I mean, 2% of the voting populace is “plenty” of people, right? (No slam intended towards those conservatives who are principled enough to oppose intrusion in the private relationships of individuals. Just don’t delude yourself into thinking your opinion matters one whit when it comes to mainstream conservatism. Just witness the statements of Dear Leader today in reaction to the Massachusetts decision.) ---
**Author:** ![Apos](https://avatars.discourse-cdn.com/v4/letter/a/838e76/32.png) [@Apos](https://boards.straightdope.com/u/Apos)\ **Post date:** [November 19, 2003, 6:00am UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/83 "2003-11-19T06:00:39Z")
If you want to see true colors come out, listen to right wing radio tommorow: (hint, you can find it simply by cycling through all the AM stations). Mike Savage was pre-empted by a Nicks game tonight, but given that he hated Master and Commander because he accused it of being written by Broadway queers and NAMBLA advocates who like seeing little boys in tight shorts, I don’t think he’s going to take to this too kindly. Let’s count the number of times on all those shows that: -religious marriage is conflated with civil marriage to heighten the outrage factor -the current talking point on how activist judges are horrible threat to society is repeated id infinitum (which is a perfectly legitimate gripe) without even acknowledging the concept of there sometimes being minority rights against a majority (which is an utter cop out if you simply ignore it instead of refuting it in THIS particular case as some much more principled posters are doing here)- ---
**Author:** ![schplebordnik](https://avatars.discourse-cdn.com/v4/letter/s/91b2a8/32.png) [@schplebordnik](https://boards.straightdope.com/u/schplebordnik)\ **Post date:** [November 19, 2003, 6:09am UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/84 "2003-11-19T06:09:29Z")
Master & Commander written by gays? For god’s sake, they didn’t even hint at sodomy, one of the great traditions of the British Navy. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 19, 2003, 6:14am UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/85 "2003-11-19T06:14:06Z")
That’s one of them. “The only traditions of the Royal Navy are rum, sodomy and the lash.” - Winston Churchill ---
**Author:** ![schplebordnik](https://avatars.discourse-cdn.com/v4/letter/s/91b2a8/32.png) [@schplebordnik](https://boards.straightdope.com/u/schplebordnik)\ **Post date:** [November 19, 2003, 6:39am UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/86 "2003-11-19T06:39:23Z")
and cannibalism – Monty Python. ---
**Author:** ![Kalhoun](https://avatars.discourse-cdn.com/v4/letter/k/3bc359/32.png) [@Kalhoun](https://boards.straightdope.com/u/Kalhoun)\ **Post date:** [November 19, 2003, 1:48pm UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/87 "2003-11-19T13:48:35Z")
Diogenes said, “How exactly does the Dunce in Chief think that same-sex unions violate the sanctity of marriage? It doesn’t affect the sanctity of my marriage in the least. Yeesh what an ass that guy is.” Prezactly. And what’s the deal with bringing “sanctity” into it in the first place? Bush injects religion into nearly every fucking statement that comes out of his mouth. Per Websters: sanc·ti·ty ( P ) Pronunciation Key (sngkt-t) n. pl. sanc·ti·ties 1. Holiness of life or disposition; saintliness. 2. The quality or condition of being considered sacred; inviolability. 3. Something considered sacred. Did this blithering idiot NOT get the memo on separation of church and state?:wally ---
**Author:** ![Rib\_Eye](https://avatars.discourse-cdn.com/v4/letter/r/53a042/32.png) [@Rib\_Eye](https://boards.straightdope.com/u/Rib_Eye)\ **Post date:** [November 19, 2003, 3:18pm UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/88 "2003-11-19T15:18:36Z")
> [@](#): > > \*Originally posted by Apos \* > \*\*You know what, some Americans don’t deserve America. \*\* Sounds like a sig to me! There has been much written about the degree of cosntitutional illiteracy in the U.S., but it still amazes me that so many of my fellow Americans don’t get it. In the U.S. you are free to practice any religion you want and the government can’t hassle you. But guess what? This country is founded on that and the corresponding principle that no religious doctrines can be used to justify restriciting people’s freedom. And I can think of absolutely NO possible objections for opposing the Mass. SJD’s decision except those based on irrational religious precepts. ---
**Author:** ![Spavined\_Gelding](https://avatars.discourse-cdn.com/v4/letter/s/958977/32.png) [@Spavined\_Gelding](https://boards.straightdope.com/u/Spavined_Gelding)\ **Post date:** [November 19, 2003, 3:52pm UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/89 "2003-11-19T15:52:12Z")
What a glittering opportunity for opportunists to start drawing bright lines between good, decent, God fearing folks and the degenerate perverts who would give long term homosexual fortification the same stamp of social approval as real marriage with the man on top for the purpose of breeding little people. That, my friends, is just how this thing is going to play out—just tune into windbag radio and the Fox Network and Jesus TV today. This is going to be a regular orgy of self-righteousness and sanctimony—little of which will focus on reality and most of which will hyperventilate over the spectacle of two unattractive, half-naked men mouth kissing right out in public in front of your kids. You want to see some stuck up Jockey Boy sit right down on Dan Patch? Well I should say! We got trouble my friends and it starts with S and it stands for same sex marriage. It’s just going to be awful. The sad thing is that there is a rational answer that will not silence the radicals and true believers on either side of this unnecessary and more than a little hysterical debate but which is none the less rational. Just call it something other than marriage. Afford everybody, hetro and homos alike, an alternative word that defines a relation ship that is identical to marriage under the laws of (your State’s name here) but is called something else. Give the man-woman people a little bone, let them be the exclusive participants in “marriage.” Exclude man-man and woman-woman from the benefits and duties of “marriage,” but create an identical status for everybody that wants it but that is called something else. Is that just too rational an answer? Is that what the Mass Court was inviting? ---
**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:** [November 19, 2003, 3:59pm UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/90 "2003-11-19T15:59:05Z")
The problem with creating an entire parallel structure beside marriage as it exists now is, aside from the separate-but-equal thing and the portability of the parallel-structured-state, that it creates a huge burden of setup and construction that could be completely bypassed simply by removing the sex-centered wording from existing marriage statutes. Of course, the states who’ve taken pre-emptive steps and amended their constitutions to explicitly prohibit SSM will have a bit more work to do, but they deserve it for passing the damn things in the first place… ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 19, 2003, 4:06pm UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/91 "2003-11-19T16:06:13Z")
> [@](#): > > \*Originally posted by Leaper \* > **Bricker** : So what distinguishes the conservatives who want a Constitutional amendment banning gay marriage (and would probably happily push one banning homosexuality altogether if they could) and the ones to whom such a thing would be an anathema? Which do you think more truly reflects the nature of conservatism, if either? I don’t purport to be an authority on the conservative movement, but in my view, the two issues, if diagrammed, would be orthogonal to each other – that is, your position on one is not a reflection of your position on the other. People far along the path of ‘anathema’ are closer to a Libertarian view of things, and in my opinion it’s a sliding scale rather than a sharply defined bright line. I express no opinion where on the two axes one might rest to best express the “nature of conservatism.” > [@](#): > > And do you believe that the Constitution as written protects everyone (or at least those it needs to protect), even people that the Founding Fathers had no idea existed, or would have condemned out of hand, like gays? (Though I suppose if you’re a small government conservative, I suppose that question is irrelevant. Just curious.) The Constitution exists for the purpose of forming the basis of civil government and providing a framework for laws. By it’s nature, it applies to everyone. To the extent that it protects rights, it protects everyone’s rights. However, in my opinion, it’s intellectually dishonest to continually discover new rights in state or federal constitutions. It’s one thing to create and apply prophylactic rules to safeguard extant rights, but it’s quite another to formulat new rights out of whole cloth. This is a debate, of course, in which my view is not the only reasonable one, and many people disagree with that proposition. In an earlier thread, **Dewey Cheatum Undhowe** and **minty green** debated this general proposition at length, with **DCU** espousing, more or less, my position and **minty green** representing the Evil Forces of Darkness. 😃 > [@](#): > > Oh, and one more thing (feel like Columbo, here): the quote of yours that I repeated implied (if I interpret correctly) that you believed that amending the Massachusetts constitution to limit marriage to a man and a woman was a good conservative gesture. Considering your reply to your answer relating to that quote, how does doing so(amending the Mass. constitution to limit marriage to heterosexuals) have any connection to a literalist reading of the Constitution? It doesn’t say anything about gay marriage. No, it doesn’t specify that a marriage is between a man and a woman, but that’s one of hundreds of words it does not define. For that matter, even if it contained that exact sentence, we might still be debating whether a male-to-female transsexual is a man or a woman within the meaning of the constitution - requiring, presumably, some comnmentary in the constitution about chromosones. That’s plainly absurd. Marriage was, until recently, understood to be between a man and a woman; you cannot point to the failure to define that and suggest it means that the state constitution permits same-sex marriage. That’s the discovery of a new right. That’s what I oppose. Now, if the legislature passes a law permitting same-sex marriage, I agree the constituion doesn’t FORBID it. But you should not claim that the constitution MANDATES it. I recognize that, in fact, the highest authority on Massachusetts law feels differently about this. They are right, by definition. But equally “right,” then, is the power of the legislature and electorate to change things back to the way they were. - Rick ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [November 19, 2003, 4:12pm UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/92 "2003-11-19T16:12:09Z")
> [@](#): > > \*Originally posted by Bricker \* > \*\*However, in my opinion, it’s intellectually dishonest to continually discover new rights in state or federal constitutions. It’s one thing to create and apply prophylactic rules to safeguard extant rights, but it’s quite another to formulat new rights out of whole cloth. … > > - Rick \*\* I believe there are no such things as “new rights.” I’m in accord with Founding Father James Wilson that _all_ rights and powers originally reside with the people. Only those rights and powers specifically ceded to the government by something like the Constitution are given up by the people in the interest of the common defense, general welfare and those other things mentioned in the preamble. ---
**Author:** ![Dogface](https://avatars.discourse-cdn.com/v4/letter/d/9d8465/32.png) [@Dogface](https://boards.straightdope.com/u/Dogface)\ **Post date:** [November 19, 2003, 4:21pm UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/93 "2003-11-19T16:21:11Z")
> [@](#): > > \*Originally posted by ElvisL1ves \* > No, I think the controversy is caused by the confusion of the civil and religious aspects of marriage, compounded by use of the same word in both contexts. It may also be compounded by the state’s common deputization of clergy to perform the legal function simultaneously with the religious ceremony. Perhaps you recall your own wedding, signing the certificate that began your legal contract with your wife at the same time you signed the church’s own register. My civil license signing was done hours after the religious ceremony. They were not combined, as doing so would profane the sanctity of the marriage with a governmental function. I did not consider myself having become married by virtue of the mere civil license. I had been married hours before. The civil license was a mere legal formality useful for reasons of insurance, debt, liability, etc. It was not a marriage. God was not involved. Render unto Caesar what is caesar’s. That is all that mere civil license was. Do not presume your experience is the sum total of everything that is possible in all the universe. You obviously did so when you made the statement above. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 19, 2003, 4:25pm UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/94 "2003-11-19T16:25:09Z")
**Bricker** , where do you get the idea that this is “discovery” of a _new_ right, not a confirmation that an existing right has long been suppressed? The majority and affirming opinions seemed pretty clearly based on existing definitions of rights - why do you think otherwise? Is it simply from your “understanding” of a traditional dictionary definition of a word? Does that trump analysis of the actual meaning of a constitution? As for an amendment defining the word “marriage”, that’s fine as long as the reality of the legal institution exists for anyone who wants to participate in it. Call it whatever you like, “civil union” will do - in fact, the objections to this ruling seem to be based only the use of the specific M-word, not on the realities that it represents. **jayjay** , _what_ “huge parallel structure” are you referring to? All it takes is the printing of some forms that say “Certificate of Civil Union (or something)” across the top instead of “Certificate of Marriage” and you’re there. Vermont seemed to figure that out pretty easily, and no doubt Ontario did too. **Gelding** , I think you’re right about the SJC’s giving Finneran the time to get a civil-unions bill written, and Romney has already hinted he can support that too; just keep the M-word out of it. That’s the way I’d bet. ---
**Author:** ![Dogface](https://avatars.discourse-cdn.com/v4/letter/d/9d8465/32.png) [@Dogface](https://boards.straightdope.com/u/Dogface)\ **Post date:** [November 19, 2003, 4:27pm UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/95 "2003-11-19T16:27:20Z")
> [@](#): > > \*Originally posted by Bricker \*However, in my opinion, it’s intellectually dishonest to continually discover new rights in state or federal constitutions. Too bad you’ve never bothered to read the US Constitution: > [@](#): > > Amendment IX > > The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. > [@](#): > > It’s one thing to create and apply prophylactic rules to safeguard extant rights, but it’s quite another to formulat new rights out of whole cloth. Obviously, you are _monumentally ignorant_ of the US Constitution: > [@](#): > > Amendment IX > > The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Before you pontificate (my, how appropriate a word for me to choose) upon the Constitution, I suggest you actually READ the Constitution for the first time in your life. You might be amazed. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [November 19, 2003, 4:32pm UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/96 "2003-11-19T16:32:40Z")
> [@](#): > > \*Originally posted by ElvisL1ves \* > \*\*. > > jayjay, _what_ “huge parallel structure” are you referring to? All it takes is the printing of some forms that say “Certificate of Civil Union (or something)” across the top instead of “Certificate of Marriage” and you’re there. Vermont seemed to figure that out pretty easily, and no doubt Ontario did too. > \*\* I’m on your side \*\*ElvisL1ves but … The statute defining this “civil union” would have to specify that it included all the rights granted “marriage” by law, custom, legal precedents etc. and I suspect it would take years of court battles to straighten out exactly what the statute meant. But I think it should be done even though I’m sure it wouldn’t be the cakewalk you describe. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 19, 2003, 4:39pm UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/97 "2003-11-19T16:39:30Z")
**Dogface** , the point was that religious and civil marriage are different creatures. Religious marriage is not and cannot be affected in any way by these developments. I’m glad you see that now and will drop the defense-of-religious-sacraments arguments you were making so strenuously earlier. ---
**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:** [November 19, 2003, 4:41pm UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/98 "2003-11-19T16:41:43Z")
**ElvisL1ves** , _I_ can print out forms that say “Certificate of Shirley” but they wouldn’t mean anything. Likewise, the states can print out all the certificates they want but they need to back them up with authority. As **David Simmons** wrote, they need to whack the ball of “what do married couples _get_, exactly” before they can define what a Shirley actually is. ---
**Author:** ![Milum](https://avatars.discourse-cdn.com/v4/letter/m/ea666f/32.png) [@Milum](https://boards.straightdope.com/u/Milum)\ **Post date:** [November 19, 2003, 4:45pm UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/99 "2003-11-19T16:45:10Z")
## **David Simmons** : I believe there are no such things as “new rights.” I’m in accord with Founding Father James Wilson that all rights and powers originally reside with the people. Only those rights and powers specifically ceded to the government by something like the Constitution are given up by the people in the interest of the common defense, general welfare and those other things mentioned in the preamble. \*\* What! New rights? \*\* 🙂 🙂 🙂 Oh brother, think about the meaning and implications of this empty buzz phrase. Sorta like all the wet-behind-the-ears 1960’s hippies running in the street whining “Make Peace Not War!” Forgive me\*\* David Simmons\*\*, for soiling your good reputation on this board by agreeing with you and James Wilson. Sorry. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 19, 2003, 4:53pm UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/100 "2003-11-19T16:53:29Z")
> [@](#): > > \*Originally posted by Dogface \* > Too bad you’ve never bothered to read the US Constitution: > . > . > . > Obviously, you are _monumentally ignorant_ of the US Constitution: > . > . > . > Before you pontificate (my, how appropriate a word for me to choose) upon the Constitution, I suggest you actually READ the Constitution for the first time in your life. You might be amazed. Prior to _Griswold_’s discussion of penumbral rights, most of which occur’s in Justice Goldberg’s dicta, how often was the Ninth Amendment mentioned in Supreme Court jurisprudence? If this were 1964, a year before _Griswold_, I’d be justified in pointing out that your interpretation was crazy. Now it’s 2003. What changed? The words of the Constitution certainly didn’t. I don’t appreciate the insulting tone in GD, by the way, especially since I am completely familar not only with the text of the federal constitution, but with the case law that has shaped its interpretation over the years. I agree, as I conceded aboce, that my approach is not the only one, and its one upon which reasonable people may disagree. But I’d say that Scalia agrees with me. If I’ve got a justice of the supreme court on my side, you can hardly characterize my view as widely outside the mainstream, even though you disagree with it. - Rick [Previous page](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921.md?page=4) [Next page](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921.md?page=6)