# The State of the CIVIL Union Address **URL:** \ **Category:** The BBQ Pit\ **Created:** [January 21, 2004, 1:47pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455 "2004-01-21T13:47:41Z")\ **Posts on this page:** 20\ **Page:** 11
**Author:** ![Airman\_Doors\_USAF](https://avatars.discourse-cdn.com/v4/letter/a/e36b37/32.png) [@Airman\_Doors\_USAF](https://boards.straightdope.com/u/Airman_Doors_USAF)\ **Post date:** [January 26, 2004, 12:46am UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/201 "2004-01-26T00:46:52Z")
> [@Homebrew](#): > > No. It was demonstrated that discrimination would continue in many places in the U.S. Sure New York might have given women the vote, but not Texas. The inequity would have been egregious. It makes no sense that the issue should be a state level decision. It is simply unthinkable that one should be more free in one state than in another. Unless it’s guns, or alcohol, or anything else that is legal in one state and not legal in the other. Every time you cross a border your freedoms are expanded in one way and abridged in another. I consider this to be on par with slavery and abortion and as such will somehow have to be resolved on a national level, but **Bricker** and **Dewey** are right in that if you’re depending on judicial activism to get your rights you’re setting yourself up for disappointment. Even now we have challenge after challenge to abortion, and it took a Constitutional Amendment to get rid of slavery permanently. This needs to be properly legislated so that they CAN’T take it away from you. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [January 26, 2004, 1:04am UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/202 "2004-01-26T01:04:55Z")
> [@Bricker](#): > > In one state I’m free to marry my first cousin. In another I’m not. > > Is this unthinkable? But if you marry your first cousin in Texas, where it’s legal and move to Arkansas, where it’s not, you’re still married. What you want to do is let me get married in Vermont, but then stay there and not be married when I come back to Texas. What’s your analogy now? ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [January 26, 2004, 1:10am UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/203 "2004-01-26T01:10:11Z")
> [@Dewey Cheatem Undhow](#): > > No, it wasn’t a bad idea; it addressed a real problem. And so would my proposed amendment. > [@Dewey](#): > > And some problems can evolve in such a way as to require a federal solution. In the same way that the tangled web of marriage laws pre-Loving did, what with the limitations on mobility and suchlike that they entailed? Or the way there’s very likely to be a large mess regarding federal marriage perks (tax filing, spousal immigration, etc) with mixed solutions? If Massachusetts doesn’t change its constitution and the decision there stands, does that mean that the federal government will be required to recognize gay marriages there? If not, then a state by state solution isn’t sufficient to eliminate the inequality before the law currently faced by gays anyways. (And isn’t this precisely what DOMA was created to do?) A federal solution may not strictly be required, but it would solve the problem a hell of a lot more thoroughly and efficiently. > [@](#): > > The reason it’s OK for the 14th amendment to forbid discrimination on the basis of race is because _that is what the people were addressing when they ratified it_. In short, that particular infringement on the federal system was approved by the people. I am on the fence between the textualist school of thought and the originalist school of thought. However, I think even the textualist school would come down on a fairly narrow equal protection clause. Recall that textualism looks at the text _as understood by the drafters_. In that sense, textualism contains an element of originalism. Textualism just doesn’t look at broader sources of intent (as originalism would) and then use those sources as dispositive when they conflict with the text. > > A textualist would ask “what did the phrase ‘equal protection’ mean to the drafters in the context of drafting this amendment?” An originalist says “forget the text; what where the drafters trying to accomplish in passing this amendment?” Okay, fair enough. I still think you’re out on a limb, here, though. I mean, if the authors meant for the equal protection clause to be narrow, why didn’t they say that? Imagined dialogue: Me: So, did you mean that _everyone_ should be equal before the law (barring compelling interest, etc, etc)? Or just on the basis of race? Framer dude: Oh, just on the basis of race, of course. Me: And could you show me in 14.1 where you intended the text to mean equal protection on the basis of race only? Framer dude: Uhhhh… It’s not as though these guys were shy about putting in qualifying phrases. It’s there in black and white in the 15th, you’ll note. So if the same qualification was intended to be part of the meaning of 14.1, why isn’t it there in the same way? I mean, if we were talking about some municipal ordinance from Outer Boondocks, WV, I wouldn’t get picky about prepositional phrases, but we’re talking about a constitutional amendment here. These guys are careful about how they word things. So where in the text of the 14th amendment is the part where the text as understood by its authors means that equal protection covers issues of race, but that’s all? > [@Dewey](#): > > The easiest answer to this question is history. If the equal protection clause was meant to be so broad, why did women need to pass the 19th amendment in order to gain the franchise? Certainly the women’s suffrage movement was closer in time to the passage of the 14th amendment, and thus both they and the courts of the day would have had a clearer understanding of what was intended by its passage. Beats me. Did anyone try? Was there a Supreme Court ruling that turned down a woman’s suffrage case brought on 14th amendment grounds? Do voting rights even come under the jurisdiction of the 14th? If so, why was the 15th even necessary? And the 15th, of course, _is_ explicitly narrow, granting voting rights regardless of race, butwith no mention of gender. Of course, you are far more knowledgable than I concerning the historic process in question, and the subsequent case law, so as a practical matter of fact you may have me over a barrel. I don’t know. But to my eyes, reading “race only” into the 14th does far more violence to the meaning of the text than does a broader reading. I can understand how a strict constructionist might say of a judgement using the broader reading, “I disagree with that interpretation of the 14th.” I cannot understand how that same judgement could be labelled as activist, or legislating from the bench, given that it’s applying the plain meaning of the text. And yet, you yourself would say just that, unless I’m mistaken. > [@Dewey](#): > > Consider government restrictions on the type of advertising on certain kinds of trucks (_Railway Express Agency v. New York_) or grandfather clauses exempting some street vendors from new regulations (_New Orleans v. Dukes_). I don’t think those would survive heightened review. Every law discriminates against _somebody_. Not knowing anything about the cases in question, I couldn’t say. Perhaps many laws couldn’t pass the test applied to use of racial categories. (And, mind you, all those tests are inventions of the courts without sanction by the constitution anyways. I realize as a practical matter that the courts need to do something of this sort, but the nature of those tests isn’t carved into stone. Fired clay, maybe, but not stone.) Nonetheless, I would think that nearly all outside of the “You can’t wash your dog on Thursdays in Springfield, IL” types you see spammed around in emails would pass a higher bar than the unfailable rational basis test. Zoning bylaws? Restrict the rights of property owners on the basis of protection the property value of neighbouring property owners. Regulations in slaughterhouses? Public health. Grandfather clauses generally (not that specific one, as I know nothing about it)? Changing existing operations to conform to new regulations often imposes a much higher burden than starting up a new operation to conform to the same regulations. This isn’t just stuff that avoids being insane - there are cogent, if sometimes debateable reasons underlying it. And if there aren’t, where’s the harm in the statute being struck down? ---
**Author:** ![Deucalion](https://avatars.discourse-cdn.com/v4/letter/d/8baadc/32.png) [@Deucalion](https://boards.straightdope.com/u/Deucalion)\ **Post date:** [January 26, 2004, 2:26am UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/204 "2004-01-26T02:26:24Z")
> [@Shodan](#): > > I don’t generally support amending the Constitution to include gay marriage, or to exclude it either. No, but you support giving the states the power to discriminate against homosexuals. And I do mean ‘giving’. Even if SCOTUS errs in taking away that power and the issue should have been addressed by the states (since it was not originally covered by the Constitution), any amendment will now be addressing it. And that means making an active choice about whether the states should have that power, it cannot simply be returning to the default because now the Constitution will deal with the issue. If you choose to address it by giving the states the power, you still face the question: why should the states have the power to discriminate against homosexuals without need? And there is no answer that does not also support giving states the power to abridge every other human right. > [@Shodan](#): > > > [@Deucalion](#): > > > > > [@Shodan](#): > > > > > > Once you accept the principle that the Supreme Court’s job is to think up things they want to see happen, call them “new rights”, and impose them against the will of the majority, you have almost completely abandoned the notion of limited government. We are supposed to be a nation of laws, not of men. If it does not matter what the Constitution says, we have abandoned the supreme law of the land in favor of rule by five old geezers in black robes. > > > > Who do you think is going to accept such a stupid principle? > > Anyone arguing that the Court ought to establish gay marriage by judicial fiat has already accepted the principle. And I’m not, because I believe that equal rights for homosexuals is protected by the Constitution, for much the same reasons as **Gorsnak.** > [@Shodan](#): > > Certainly they will be easy to make. But since we have already accepted that it matters little what the Constitution actually says, the arguments can safely be ignored. Sure they could, but why would the next generation want to leave such obvious errors in place? Perhaps because there not so obvious afterall? > [@Shodan](#): > > > [@Deucalion](#): > > > > An amendment wouldn’t just say that the judges made the wrong decision, it would be explicitly stating that the Constitution does not and should not secure equal rights for homosexuals. I would further say that it signals that prior to the amendment, the Constitution did secure equal rights and that they have since been taken away. (That’s how it could be said to enshrine bigotry.) > > Not under any theory of strict interpretation of the Constitution. > > We have not established that the Constitution secures equal rights to gay marriage, and none of the amendments under discussion state explicitly that gays should not have equal rights. Nor would it be overturning any federal precedent. It is not necessary to establish that it would have secured equal rights to gay marriage, it is implied by the very fact that an amendment was required to change it. I never said that any of the amendments state that gays should not have equal rights, the amendments explicitly say that the Constitution does not _secure_ equal rights for gay people. ---
**Author:** ![nisosbar](https://avatars.discourse-cdn.com/v4/letter/n/c37758/32.png) [@nisosbar](https://boards.straightdope.com/u/nisosbar)\ **Post date:** [January 26, 2004, 1:08pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/205 "2004-01-26T13:08:49Z")
> [@Dewey Cheatem Undhow](#): > > Calling it an “existing right” is simply at odds with reality. You may want it to be a right, it may be good and just that it be deemed a right, but it ain’t a right unless you’ve got a corresponding remedy. Your remedy is to file suit in order to make your case that your rights are being infringed upon, like the plaintiffs in Massachusetts who sued the state that they did have a right to get married under that state’s existing Constitution. Right now, while the Massachusetts Supreme Court decided that gays have a right to marry under their state constitution, other states probably would not be likely to support that idea - Texas, for example. However, it’s just a matter of time before courts recognize that the rights of gay citizens to engage in marriage is being infringed upon; that gays DO have the right to marry under the US Constitution and that they are being denied their rights. > [@Dewey Cheatem Undhow](#): > > If you want to argue that God has given you certain rights, go ahead – and be sure to let God protect them. I deal with the rights the _constitution_ protects, which may or may not correspond to your own view of things on a metaphysical level. I don’t believe the argument behind gay marriage is that the right to marry comes from God - the argument is that the US Constitution does not deny gays the right to marriage, and thus is an existing right under the US Constitution. This has nothing to do with metaphysics or any other meta-. You are trying to twist the debate around and paint gays as the radicals here. They are not. The fundamentalists trying to write away existing rights are the radicals. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [January 26, 2004, 3:58pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/206 "2004-01-26T15:58:26Z")
> [@Homebrew](#): > > Dewey, you like to point out various Amendments (14th, 19th) that have given expanded protection for various groups. You cite these as examples of how majorities were convinced of the error of their ways and wanted to enshrine their newfound fairness. > > That view is fatuous. > > If the Majority had grown so egalitarian as to widely support these Amendments, then why were they even necessary? Couldn’t invidious Jim Crow laws have been simply repealed or changed? Couldn’t voting priviledges been simply Legislatively expanded? > > No. It was demonstrated that discrimination would continue in many places in the U.S. Sure New York might have given women the vote, but not Texas. The inequity would have been egregious. It makes no sense that the issue should be a state level decision. It is simply unthinkable that one should be more free in one state than in another. There are two answers to the points you raise: permanance and stubborn holdouts. 1. Permanence – this is, to my mind, the chief advantage of using the amendment process over the use of ordinary statutes. The framers of the 14th amendment, having decided that racial equality was a value worth protecting in the long term, passed an amendment so that the enshrinement of that principle would not be easily washed away by later governing majorities. 2. Stubborn Holdouts – As you correctly note, the people of the United States overall may broadly agree on a principle, so much so that they deem that principle worth federalizing, but a few stubborn states may persist in seeing things differently. Passing an amendment makes the principle effective nationwide while simultaneously removing objections based on constitutional federalism. N.B.: While I balk at amending the constitution one way or the other on this issue – I see the definition of marriage as a quintessential state law issue, and think it should remain such – I agree that if gay marriage is to be enshrined in constitutional law, then an amendment like **Gorsnak** ’s (rather than judicial re-interpretation of the existing text) is the way to go. Such a solution has the benefit of bearing the acceptance of the population, and thus respects notions of self-governance. Should such an amendment pass, I would have no grounds on which to complain – the system would be working as it is supposed to. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [January 26, 2004, 4:34pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/207 "2004-01-26T16:34:33Z")
The Stubborn Holdouts are precisely what I mean when I talk about a Tyranny of the Majority. The 13-15th Amendments would not have passed when they did without Reconstruction in place. The Southern States would never have passed them without the Reconstruction Acts. The unique circumstances of that time period made it possible for the Legislature to take the correct actions. Unfortunately, current bigotry makes it unlikely, even impossible, that Liberty will be ensured through legislative means. Justice requires the Judicial recognition of equality and the protection of a minority. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [January 26, 2004, 4:36pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/208 "2004-01-26T16:36:32Z")
> [@Gorsnak](#): > > A federal solution may not strictly be required, but it would solve the problem a hell of a lot more thoroughly and efficiently. This argument could be made of almost any issue ordinarily handled by the states. Doubtless it would be more efficient to have one law on, say, the use of cell phones in moving vehicles, or on intestate disposition of property, or on smoking in bars and restaurants. Federalism means sacrificing some efficiency and working through difficult problems when one state’s law rubs up against another’s in favor of allowing individual communities to act autonomously. > [@Gorsnak](#): > > Okay, fair enough. I still think you’re out on a limb, here, though. I mean, if the authors meant for the equal protection clause to be narrow, why didn’t they say that? Tragically, we don’t have “framer dudes” that we can just ask, so we turn to what was said and written at the time of passage about the amendment itself. That record is clearly geared toward addressing problems of disparity of treatment on racial grounds. > [@Gorsnak](#): > > Beats me. Did anyone try? Was there a Supreme Court ruling that turned down a woman’s suffrage case brought on 14th amendment grounds? [Yes](http://laws.findlaw.com/us/88/162.html). > [@Gorsnak](#): > > Do voting rights even come under the jurisdiction of the 14th? If so, why was the 15th even necessary? And the 15th, of course, _is_ explicitly narrow, granting voting rights regardless of race, butwith no mention of gender. Be careful with that argument. Taken to its logical conclusion, you are saying there is nothing in the constitution which would prevent depriving gays of the right to vote. > [@Gorsnak](#): > > Not knowing anything about the cases in question, I couldn’t say. [Railway Express Agency v. New York](http://laws.findlaw.com/us/336/106.html). [New Orleans v. Dukes](http://laws.findlaw.com/us/427/297.html). ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [January 26, 2004, 4:45pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/209 "2004-01-26T16:45:03Z")
> [@nisosbar](#): > > I don’t believe the argument behind gay marriage is that the right to marry comes from God - the argument is that the US Constitution does not deny gays the right to marriage, and thus is an existing right under the US Constitution. This has nothing to do with metaphysics or any other meta-. This argument is absurd. The US Constitution does not explicitly deny me the right to walk down the street buck naked, either, but no one seriously suggests that prohibitions on public nudity are unconstitutional. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [January 26, 2004, 4:52pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/210 "2004-01-26T16:52:08Z")
> [@nisobar](#): > > the argument is that the US Constitution does not deny gays the right to marriage, and thus is an existing right under the US Constitution. This seems to imply that whatever is not forbidden is mandatory under the Constitution, and is therefore a little too sweeping. Under this principle, since the Constitution does not specifically forbid incest, all laws prohibiting people from marrying their sisters are unconstitutional. So is any other law forbidding anything else not explicitly forbidden by the Constitution. Since the Constitution does not expressly forbid me from living off public subsidy, my right to live off your taxes is clearly established, and I expect to start receiving my checks at once. And such examples could be multiplied almost without number. You are correct in thinking that the Ninth Amendment is designed to say that there can be other rights, not expressly guaranteed by the Constitution, that are nonetheless real. But the Tenth Amendment is designed to establish the locus of responsibility for determining and securing those rights, and this does not include having a federal judge dream up new rights that he thinks would be nice, and then issuing orders that force the states to implement them. > [@Deucalion](#): > > No, but you support giving the states the power to discriminate against homosexuals. And I do mean ‘giving’. No, I don’t think that is what you mean. Under the Tenth Amendment, the states are already decided on as the place where we thrash out what is a new right, and what is not. Simply asserting that whatever you want is a new right, and assuming that it is enshrined in the Constitution because the Constitution never says word one about it, is exactly what the amendments are meant to forestall. If you think you have a right, to gay marriage or whatever, you have two options. The first is to point to the clause in the Constitution that expressly guarantees that right. Depending on who you are talking to, you might even succeed, if you can find a judge who thinks that anything that sounds like a good idea is necessarily guaranteed. If you can’t find such a clause (or such a judge), you then have the task of either a) amending the Constitution so that it does explicitly guarantee your new right, or b) persuading 51% of your state legislature to enshrine your new right into law. In both cases, you are going to have to convince a lot more people than five old justices of the unshakable rightness of your cause. If you would rather take the route of finding a judge who is willing to enforce what he thinks the Constitution _ought_ to have said instead of what it does say, you are going to have to come up with a consistent principle to show why we want to allow this route when it brings about things that we want (gay marriage) but not when it brings about things that we don’t want (polygamy, incest, allowing me to live off public subsidies, whatever). > [@Deucalion](#): > > Even if SCOTUS errs in taking away that power and the issue should have been addressed by the states (since it was not originally covered by the Constitution), any amendment will now be addressing it. And that means making an active choice about whether the states should have that power, it cannot simply be returning to the default because now the Constitution will deal with the issue. If you choose to address it by giving the states the power, you still face the question: why should the states have the power to discriminate against homosexuals without need? No, I am not “giving the states” any power. I am allowing them to retain the power to decide questions of rights not addressed by the Constitution, and I am doing so based on what I believe is the intent of the Tenth Amendment and everything the Founding Fathers ever said about limited government. Establishing brand-new rights by judicial fiat is the wrong way to go about it. > [@Deucalion](#): > > And there is no answer that does not also support giving states the power to abridge every other human right. Every other human right that isn’t established by the Constitution or by the states, or by the people - you bet your life I support that. This is exactly what I am arguing in favor of. > [@Deucalion](#): > > Sure they could, but why would the next generation want to leave such obvious errors in place? Perhaps because there not so obvious afterall? Or perhaps of the natural, but dangerous tendency of governments to grow, and to take over a larger and larger role, and, if left unchecked, to begin by establishing something benign but to end by taking over completely. > [@Deucalion](#): > > It is not necessary to establish that it would have secured equal rights to gay marriage, it is implied by the very fact that an amendment was required to change it. I never said that any of the amendments state that gays should not have equal rights, the amendments explicitly say that the Constitution does not _secure_ equal rights for gay people. Which amendment is being generally supported in this thread that says explicitly that “gay people do not have equal rights with straight people”? And I have been arguing all along that no amendment is necessary to change the Constitution so that it does not establish gay marriage. There is no right to gay marriage established by the Constitution. The fact that the Constitution does not address gay marriage at all means that decisions by federal judges that say that it does are not sound. Since the Constitution does not address the issue, any and all such questions must and should be decided by the states, or the people. Not by federal judges. The legislatures make new law, the judiciary interprets the law, the executive enforces it. Past a certain point, “interpretations” of the law that cause it to say things it doesn’t say, or address issues it doesn’t address, or reshape society against the will of the majority in ways that allow for no redress, are violations of the checks and balances built into the system. The amendments under discussion are (in my view misguided) attempts to re-establish the rights of the states and of the people to decide questions of fundamental rights not addressed by the Constitution on their own behalf - not to have these questions decided in secret, and by an elite class of rulers in black robes. Regards, Shodan ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [January 26, 2004, 4:55pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/211 "2004-01-26T16:55:28Z")
> [@Homebrew](#): > > Justice requires the Judicial recognition of equality and the protection of a minority. I just find it amazing that you consider your own moral compass to be so perfect and unfailing as to be sufficient to impose your own worldview on the rest of society. No need for pesky things like persuasion or discussion – **Homebrew** ’s right, anyone who disagrees is wrong, and anything short of what **Homebrew** decrees to be capital-J Justice is both insufficient and evil. Incidentally, your point about Reconstruction of course ignores the wealth of other amendments passed by normal, non-post-civil-war processes which aided disaffected minorities at the expense of the then-ruling majority. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [January 26, 2004, 5:26pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/212 "2004-01-26T17:26:36Z")
By “wealth of other amendements” I presume you mean two (XIX & XXVI). Including the XXVI is cagey since I’m not convinced it came at an expense of the majority. Surely you can’t mean XXIV because I’d guess the majority supported that one. That one was necessary because of the Stubborn Holdouts. And once again we’re getting the bullshit argument that allowing gay people to get married is imposing anything fuckin’ thing on anyone. We are not asking for you to be forced to marry a man. We’re not even asking that your church perform the ceremony. All we are demanding is that we have equality which is ours by virtue of a straight-forward reading of the Constistution. Even if we allow a Rational basis for banning gay marriage, you’ve yet to offer even that much of an arguement. We’re talking about personal liberty, not speed limits. Our whole basis of civilization requires the recognition of liberty. To impose on that Liberty requires at least a nominal reason. I’d contend it requires a compelling reason; but you and noone else have even extended a rational reason. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [January 26, 2004, 5:41pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/213 "2004-01-26T17:41:50Z")
> [@Shodan](#): > > This seems to imply that whatever is not forbidden is mandatory under the Constitution, and is therefore a little too sweeping. Nice use of the Illicit Major fallacy. What the principle espoused does is state that the government must have a reason to intrude on Civil Liberties. As has been touched on before, judicial rulings refer to level of reasonableness from Rational Basis to Strict Scrutiny. Walking naked down the street is not a real issue of Liberty and is subject to a rational basis. Whom you marry is an issue of Personal Freedom that goes much deeper than public nudity and therefore should pass Strict Scrutiny to infringe. However I’ve yet to see anyone even propose a reason to ban gay marriage that meets even a rational basis. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 26, 2004, 5:49pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/214 "2004-01-26T17:49:22Z")
> [@Homebrew](#): > > However I’ve yet to see anyone even propose a reason to ban gay marriage that meets even a rational basis. And this opinion arises, no doubt, from your encyclopediac knowledge of the judicial history of the rational basis and strict scruntiny tests, yes? Just for grins and chuckles, **Homebrew** , what, in your view, is the most absurd or irrational law upheld by the Supreme Court when applying the rational basis test? - Rick ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [January 26, 2004, 6:41pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/215 "2004-01-26T18:41:20Z")
> [@Homebrew](#): > > Nice use of the Illicit Major fallacy. Thanks. > [@Homebrew](#): > > What the principle espoused does is state that the government must have a reason to intrude on Civil Liberties. As has been touched on before, judicial rulings refer to level of reasonableness from Rational Basis to Strict Scrutiny. And what the other principles involved do is state that new civil liberties are not established by judicial fiat, but by the Constitution, the states or the people. On what basis do you advocate that the federal courts should infringe on the rights of the states to establish new civil liberties? What is the compelling interest that would force the Supreme Court to impose this on the states? You have not established that gay marriage is a right established by the Constitution. As has been stated and repeated, the Constitution does not address the issue at all. Therefore, any new right must be established under the Tenth Amendment, which sends you to the states, or the people. Repeating, over and over, that gay marriage is a fundamental right does not establish it as such. Either point out where the Constitution addresses it one way or the other, or start lobbying the states. The only amendment with any support from a participant in this thread is designed to stop the idea of gay marriage from being imposed by judicial fiat. Gay marriage is a change in law. “Interpreting the Constitution” to find that this right existed all along is a fig leaf, proposed (I suspect) by those who realize that they have no chance of getting what they want from the majority, or in any state legislature (or Congress) and therefore need a judge to impose what they cannot achieve in any other way. You have to present a persuasive case that will convince the states and/or the people to change the law to give you what you want. This chosen route of arguing that whatever someone wants is mandated by the Constitution will not work, because you also need to come up with some rational basis to argue that we can exclude other forms of “marriage”, like polygamy or incest. > [@Homebrew](#): > > Whom you marry is an issue of Personal Freedom that goes much deeper than public nudity and therefore should pass Strict Scrutiny to infringe. However I’ve yet to see anyone even propose a reason to ban gay marriage that meets even a rational basis. There is no right to gay marriage that has been established that is being infringed. And there won’t be one, until you can convince the people or the states to recognize it. This is not a ban on currently existing law. It is the advocacy of a change to law that is nowhere addressed by the Constitution. The burden of proof remains squarely on the shoulders of those who want the Supreme Court to impose their will on the rest of the country. Marriage is not a private decision but a public act. You are asking the state to make formal recognition of relationships that do not currently exist in law. If you want the rest of us to accept this very large change, it behooves you to present a case that is stronger than “But I wanna, and the Constitution doesn’t say I can’t!” Because the same arguments apply just as strongly to incest, polygamy, and a whole bunch of other ideas that you and I would agree are stupid. Regards, Shodan ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [January 26, 2004, 7:14pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/216 "2004-01-26T19:14:34Z")
> [@Dewey Cheatem Undhow](#): > > This argument is absurd. The US Constitution does not explicitly deny me the right to walk down the street buck naked, either, but no one seriously suggests that prohibitions on public nudity are unconstitutional. No, but prohibitions on public nudity which apply to one sex and not the other are. c.f. that case in NY in which a ban on women being topless in a subway was struck down on the grounds that it discriminated against them because men were able to go topless on the subway with impugnity. In exactly the same way, allowing a man to be married by a woman but not a man is sex-based discrimination and the State must offer up, **under the 14th Amendment** , an important state interest served by the restriction. What important state interest is served by banning SSM? ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [January 26, 2004, 7:19pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/217 "2004-01-26T19:19:02Z")
> [@Bricker](#): > > ust for grins and chuckles, **Homebrew** , what, in your view, is the most absurd or irrational law upheld by the Supreme Court when applying the rational basis test? > > - Rick _Bowers_ Now for more shits and grins why don’t you offer a single rational reason to oppose gay marriage rights? ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [January 26, 2004, 7:30pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/218 "2004-01-26T19:30:14Z")
> [@Shodan](#): > > Marriage is not a private decision but a public act. You are asking the state to make formal recognition of relationships that do not currently exist in law. If you want the rest of us to accept this very large change, it behooves you to present a case that is stronger than “But I wanna, and the Constitution doesn’t say I can’t!” Because the same arguments apply just as strongly to incest, polygamy, and a whole bunch of other ideas that you and I would agree are stupid. > [@](#): > > \*\*Marriage is one of the “basic civil rights of man,” \*\*fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. For your reference > [@](#): > > Amendment XIV > > Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Marriage has been ruled a basic civl right. That right is being denied on invidious discrimination based on sexual orientation. It is a clear violation of the 14th Amendment. Only your prejudice prevents you from admitting this. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [January 26, 2004, 7:48pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/219 "2004-01-26T19:48:19Z")
> [@Shodan](#): > > Under this principle, since the Constitution does not specifically forbid incest, all laws prohibiting people from marrying their sisters are unconstitutional. Absent a rational state interest in forbidding such marriages, you are correct. The state has advanced multiple rational state interests in banning sibling marriages. The state has advanced _no_ rational reason for banning SSM, and is actually IMHO required to advance an important state interest–something else it has failed to do. “We don’t like it” is not an important or a rational state interest, nor is “protecting the sanctity of marriage” nor “protecting the children.” > [@](#): > > Under the Tenth Amendment, the states are already decided on as the place where we thrash out what is a new right, and what is not. Simply asserting that whatever you want is a new right, and assuming that it is enshrined in the Constitution because the Constitution never says word one about it, is exactly what the amendments are meant to forestall. There seems to be some misapprehension under which you (and others) are operating. The question is not “is there a right to SSM in the Constitution?” Obviously, the text of the Constitution is silent on the topic of marriage, the word not appearing anywhere in it. No, the question is “does the state have the power under the Constitution to bar marriage between two people of the same sex?” The Constitution does not say that the state has that power (the word “marriage” not appearing anywhere in it, after all) but the Constitution does say that the people are entitled to equal protection under the law. It is this right to equal protection under the law which guarantees the right of same-sex couples to marry absent some (depending on which test one applies) “important” or “rational” state interest in preventing it. I find the hair-splitting and pin-head-dancing to be bizarre in light of the fact that the federal government has already staked its claim on marriage (both through the thousand or so laws federal laws which mention it and the various SCOTUS decisions guaranteeing it). Marriage discrimination is a federal issue because guaranteeing the people the right to equal protection under the law is a federal issue. > [@](#): > > If you think you have a right, to gay marriage or whatever, you have two options. The first is to point to the clause in the Constitution that expressly guarantees that right. Done and done. 14th Amendment Equal Protection clause. > [@](#): > > Establishing brand-new rights by judicial fiat is the wrong way to go about it. So then you disagree with the Court’s finding in Loving? [quote] There is no right to gay marriage established by the Constitution. The fact that the Constitution does not address gay marriage at all means that decisions by federal judges that say that it does are not sound. Since the Constitution does not address the issue, any and all such questions must and should be decided by the states, or the people. Not by federal judges. [quote] There is no right to interracial marriage established by the Constition. The fact that the Constitution does not address interracial marriage means that decisions by federal judges that say it does are not sound. Since the Constitution does not address the issue, any and all such questions must and should be decided by the states, or the people. Not by federal judges. And Mr and Mrs Loving rot away in jail. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [January 26, 2004, 8:10pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/220 "2004-01-26T20:10:19Z")
> [@Otto](#): > > No, but prohibitions on public nudity which apply to one sex and not the other are. Which, of course, has nothing to do with the argument advanced by **nisobar** to which I was responding. **Nisobar** had claimed that if the constitution did not expressly prohibit something, then it was a protected right. Which is absurd. My public nudity example speaks directly to that argument. [Previous page](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455.md?page=10) [Next page](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455.md?page=12)