Queerly high, highly queer

Here’s two questions for you lawyers and civil libertarians out there:

  1. Why can’t or doesn’t Constitutional equal protection and the various anti-discrimination laws derived thereof guarantee two people of the same sex the right to get married?

  2. For the sake of argument, suppose it can be conclusively proven in court that marijuana is no more detrimental than alcohol physically, socially or otherwise. Could one then mount an equal protection argument against the illegality of smoking pot?

I’m not a lawyer, but I’ll take a stab at this.

From what I remember in college, our written constitution is based upon English common law, which recognized only marriage between men and women. Not that many same sex couples, circa 1350 AD, applied at the local village hall–or the local parish–to get married. Anyway, since neither our constitution, or any laws short of Vermont’s recent “Civil Union” legislation, addressed this matter, gays/lesbians cannot get married and have it recognized by any legal authority in the USA.

In short, same sex couples can’t get married, since no one ever said they can. Again, I’m not a lawyer, but I think got to the heart of that matter.

Pot and booze. I’ll turn this one around. Let’s say that I invented alcoholic beverages in my basement last year. Prior to that, it never existed. Once I perfected my “invention,” my friends and I would drink it daily, and we loved the inhibition-releasing effects of beer and wine etc., the buzz, not to mention the great feeling of being totally blasted, peeing off the balcony while blitzed, etc. Now, let’s see one of my friends says: “Dude, ya gotta sell this stuff!” I do. And then the FDA gets wind of my new business venture. They do studies. They find that people who drink my “invention” cannot act responsibly, drive a car as well as when NOT drinking my invention, “operate heavy machinery,” or avoid picking fights with people. Not to mention the problems that come after drinking such as hangovers, the risk of addiction–and later on–liver damage, throat cancer, etc.

My “invention,” if not banned outright, would be available only under prescription.

Then why is booze legal and pot not? Because, kind of like marriage and English common law, etc, booze–except for the foolish detour during the 1920s–has been legal since our ancestors wore fur for underwear. And sociey accepts alcohol, for the most part.

Hope I made this a little clearer.

Thank you for your two-hundredths of a dollar, jlruberry. Before I respond to your post, let me quote the relevant clause of the 14th Amendment that I’m asking about with regard to weed and wed:

“No state shall make or enforce any law… deny[ing] to any person within its jurisdiction the equal protection of the laws.”

Certainly English common law was a prime influence, as well as the writings of Locke, Rousseau, Mill and other political philosophers. However, at its creation the Constitution was given a key and (at the time) radical characteristic: it could be added to and modified in order to evolve with the times, making it an “organic” document.

American citizens enjoy many rights and priviliges that are addressed per se neither by the Constitution nor by any legislation (not to mention English common law) – the right to privacy, “Miranda” rights and reproductive rights being a few – because of what the Supreme Court called the “penumbra” effect of the Constitution. For example, nowhere does the Constitution explicitly separate matters of Church and State, but the First Amendment has been construed by the courts thusly.

Which brings me back to my original question: Since other rights have been secured via legal Constitutional challenge, why can’t same-sex marriage? Or can it?

Excellent analogy, and (forgive me for straying into IMHO territory) a wonderful illustration of the foolishness of outlawing one substance while allowing another.

Many other substances were also legal under English common law and the early days of our law, among them cocaine (which incidentally Coca-Cola originally contained and derived its name from), opium, and hemp. None other than George Washington extolled the virtues of wacky tobacky.

Societal acceptance certainly has a huge bearing upon the substance of the law, but it doth not the law make. Half of our country (at least) approved of slavery, nevertheless it was outlawed by the 13th Amendment.

I’m getting off track again, however. I’m really looking for hard legalistic answers to my two questions; “coulds” rather than “shoulds”.

IANAL, but I can try…

Equal protection isn’t the best argument for gay marriage, because gay people already have equal protection of the law in marriage. I don’t know of any states that say a straight man can get married to a woman, but a gay man can’t, or a straight woman can get married to a man, but a lesbian can’t.

I don’t understand the pot question. Why do you think equal protection could even be brought up?

Regarding same-sex marriage:

I’m not making an argument (here, at least) but I’m curious about how equal protection applies. By law, one can’t prohibit people of different races, religions, etc. from getting married, so why people of different genders?

Regarding weed:

I’m thinking EP could be brought up if one could legally establish that marijuana was fully equivalent to the two big legal OTC recreational drugs, alcohol and tobacco. Could one then make the argument that pot smokers are discriminated against as a class by the law? I’m pretty sure the answer is no, but I’m curious as to why.

Well, if you take your use of the equal protection doctrine that far, all criminals would count as a group that should have protection from being herded up and tossed in jail simply because they’re criminals. Basically, the law says “don’t do this”, and if you do it, you are breaking the law, no matter who you are.

Another barrier to gay marriages is the fact that sodomy is illegal in several states. The arrest and prosecution of homosexuals under sodomy laws was held to be constitutional by the Supreme Court in Bowers v. Hardwick in 1986.

OK, let’s make this a little more concrete. I, personally, am a heterosexual male. The poster Esprix is a homosexual male. I have the legal right to marry a woman. Esprix also has the legal right to marry a woman. We’ve got equal rights there. I do not have the legal right to marry a man. Esprix likewise does not have the the legal right to marry a man. We’re equal there, too.

Similarly, every adult has the legal right to use alcohol or tobacco, and no adult has the legal right to use marijuana. The fact that some folks prefer pot to booze, or vice versa, is irrelevant.

Note that this is purely in reference to legal rights, and those legal rights may change at any time. This does not necessarily apply to moral or ethical rights, but discussion of those belongs in Great Debates, not here.