The US consitutional system has responded to this emerging social issue. A debate has been held about gay marriage in this country. Everywhere people have been able to vote on gay marriage it has lost. A few states have been able to force it through after the democratic landslide of 2008, but the vast majority of states have had their legislatures debate this and passed laws against gay marriage. This is how a democracy deals with a new issue, through debating then voting. The pro-gay marriage people had a chance to make their case to the people and were rejected. They did not like this so now they are trying to force it through by judicial fiat. Now we will see if the laws of this country are made by the people or whether unelected government officials will impose laws on the people against the democratically voiced will.
First of all, thank you. This is a far better reasoned set of arguments than any I’ve seen.
Now, would 1 -3 apply to any Equal Protection Clause argument? They don’t seem to be especially SSM related. And I’m not saying that they are irrelevant.
Now, for 4-7, which is, does furthering a legitimate goal typically allow the reduction in the right to perform actions which might not be furthering that goal? As an example, encouragement of home ownership is a legitimate goal in the same way that encouragement of procreation is. (Assuming that the tax breaks define the encouragement.) Would a ban on renting apartments to people be permissible since it goes against the government goal of home ownership? I understand that a different right is being violated here, but wouldn’t the justification of banning rentals be similar?
Yes.
Yes, but as you surmise, a ban on renting apartments would run afoul of other protections. It wouldn’t be analyzed under Equal Protection Clause terms, but rather under Due Process terms. And in the Due Process realm, we have caselaw language that would probably protect the renting of apartments, because such renting would likely be called a “fundamental right,” since it is “deeply rooted in our nation’s history.” In other words, because enjoying the right to rent apartments has a long history in our nation, an attempt to ban it now would likely run afoul of the Due Process Clause, a concept called “substantive due process.”
I’d accept your post (despite the incredibly loaded language) if it weren’t for the fact that three of the states have enacted SSM without using the courts at all.
But anyway, I’m derailing the thread and given it’s (as usual) come to be about the US legal system I don’t care enough about the subject to want to keep pushing the point, so I’ll drop it.
So Bricker, let’s save everyone time and keep the hijack to a minimum. You already said you don’t find the argument you laid out to be compelling. So where does it break down? Why is it not compelling?
I’ll offer a guess: you have some argument for why the rational basis test should not apply in this issue.
If anyone can do it, Bricker can. If you get a spare minute, could you PM me either with a summary of the arguments or with a link to a relevant old thread? I promise not to respond. 
Never mind, I see you went ahead and provided it. Now, of course, I’m curious to know what convinced you there are better arguments for SSM than the argument you had against it.
There is. It’s called a (Civil) Marriage License. You can’t be married even in church without one. Gender-neutralize the language and there you have it.
The terms for this are already spelled out in each state’s Family Law Code and are well known to many professions and passingly familiar to a large part of the citizenry, and besides modern Family Law calls for “the best interests and welfare of the child” to be placed ahead of those of the putative parents regardless of marital status so you’re gonna have to work to make an* a la carte* contract on parental obligations stand up in court.
Which does not require a total overhaul of the system. Family Law Codes or their equivalent* already *contemplate situations where legal paternity/maternity/parenthood is in effect with all the rights and duties in the absence of biological link and even in cases where the different true genetic stirp is known, and where the latter loses any legal claim to rights or links.
My preference would be for a system as used in many* Code Civil* jurisdictions where the real legal marriage only happens in front of a Civil Notary/Clerk, always, no exception, and any religious rite is merely the parties’ choice to have a public blessing of said marriage.
Yes. And And my offered argument doesn’t apply to states that adopt SSM by legislative vote, as Vermont, New Hampshire, and New York have done – not to mention the District of Columbia.
There are also good reasons that laws creating classification by sexual preference should be analyzed under a heightened scrutiny, not simply rational basis.
So on balance, I believe the wise course is for states to adopt same-sex marriage on precisely the same grounds as they do traditional marriage.
But I don’t pretend that the opposing view is utterly bereft of any semblance of argument.
Interesting, thanks. I’m not nearly as familiar with the legal terms you are, so this is enlightening. I would wager that most opponents of SSM are also unfamiliar with this kind of legal analysis, though, and are not using as the foundation of their argument.
Since I will never argue an opinion until I’ve read a book espousing the other side, I read “Outrage” by Peter Sprigg. I thought my head was going to explode! Example: Since every gay in California did not run out and get married the day gay marriage was legal, it proves gays do not want marriage.
The most bizarre argument was the gays should not be allowed to parent children because most child molesters in prison self-identified as being gay or bisexual.