Gay Marriage and States’ Rights: A Reason.com Debate

Does the legal challenge against Proposition 8 violate the principles of federalism?

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Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.

States Opposition to Same-Sex Marriage May Be Unwise, But It’s Not Unconstitutional

Jonathan H. Adler

It is understandable that same-sex marriage proponents have turned to the federal courts to advance their cause. At many times in our nation’s history, the federal courts have vindicated individual liberty when legislatures and the political process would not. Yet in their zeal to advance the cause of same-sex marriage, Proposition 8 opponents are threatening the principles of federalism that are among the Constitution’s central bulwarks of liberty. A decision invalidating California’s Proposition 8, however welcome for the cause of marriage equality, would be a loss for federalism and a constitutional mistake.

The system of federalism is an essential guarantor of individual liberty and constraint on governmental power. As the Supreme Court noted in a unanimous 2011 decision, “federalism secures the freedom of the individual.” It does this by, among other things, forcing states to compete with one another for citizens by providing different mixes of policies (taxes, services, and legal guarantees) in an effort to discover the best mix. Where states get it wrong, such as by imposing excessive taxes or unjust laws, people remain free to “vote with their feet”  and move to a jurisdiction with laws more in line with their beliefs.

Federalism thus advances individual liberty and fosters policy innovation. As circumstances and preferences change, states remain free to modify their policies accordingly. In a nation as large and diverse as the United States, this means different parts of the nation will pursue difference policy priorities, particularly if limits on the federal government’s power are observed. 

Under the Constitution, the powers of the federal government are limited and defined. Those matters not delegated to the federal government are reserved to the states and the people. Family law, including the law of marriage, has traditionally been a matter left in state hands. In few areas is there a federal interest in how families are defined (which is one reason why Section 3 of the Defense of Marriage Act should be held unconstitutional).

The Supreme Court has customarily declined to intervene in the field of domestic relations precisely because this has traditionally been an area of exclusive state concern. Indeed the Court has long held that States have an “absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created.” On this basis states have adopted rules setting age requirements or other limitations on the both the creation and dissolution of marriages, the care and control of children, and other questions relating  to family law. 

Within our federalist system, state laws concerning marriage and other familial matters evolved dramatically over the 20th century, and continue to evolve today. Indeed, were it not for federalism, it is unlikely we would be having a debate about same-sex marriage at all, as it is only the system of federalism that has enabled states to experiment with different policies designed to extend the blessings and benefits of state-sanctioned marriage to same sex couples. In the process, many Americans once suspicious or uncomfortable with the prospect of homosexual unions have discovered they have little to fear, and support for same-sex marriage has spread. Thus, just last year voters in Maryland and Maine approved same-sex marriage, and it is near certain that others will follow. 

Some same-sex marriage proponents object o allowing such experiments to continue on the grounds that a refusal to recognize same-sex marriage on fully equal terms to heterosexual marriage is unconstitutional. Such policies violate the Due Process and Equal Protection Clauses of the 14th Amendment, they contend. For this reason, some argue, the debate over same-sex marriage is not a question of federalism, but fundamental constitutional right.

The claim that a refusal to recognize same-sex marriage violates the original public meaning of the 14th Amendment scarcely needs a response. The Equal Protection and Due Process clauses were enacted to ensure the fundamental liberties of newly freed slaves and prevent the imposition of arbitrary and invidious classifications based upon race. The clauses were not then, and have never been, understood to invalidate any and all distinctions or restrictions imposed by state governments, including those based upon sex. Some classifications based upon sex violate the 14th Amendment, to be sure, but those classifications supported by a sufficient state interest pass constitutional muster. And, as traditionally applied, a state’s decision to only license marriages between one man and one woman easily pass that test.

The Supreme Court recognized a fundamental right to marry in Loving v. Virginia in 1967. Loving, which struck down a state law barring some forms of interracial marriage, does not require the invalidation of Proposition 8, however. Laws barring miscegenation sought to legitimize a system of racial oppression and inherently embodied invidious discrimination. The same cannot be said for laws embodying a traditional definition of marriage, however wrong-headed such laws may be. Indeed, only five year after Loving, the Supreme Court dismissed a Due Process and Equal Protection of Minnesota’s refusal to recognize same-sex marriages “for want of a federal question.”

The arguments for holding Proposition 8 unconstitutional do not seek to vindicate a “right to marry” so much as they seek to alter the definition of what constitutes a marriage in the first place. Marriage has been understood to constitute the union of one man and one woman through most of human history. Indeed, this definition long predates the Constitution. Some cultures have recognized polygamous marriage, but sexual difference has been a core component of what constitutes a marriage in nearly every case. 

As a consequence, there are plenty of judicially cognizable reasons why the people of a state may prefer not to define a marriage as anything other than the union of one man and one woman. Such a union is the only one capable of naturally producing offspring within the bounds of marriage. This is why the traditional definition of marriage has persevered throughout most of human history throughout most of the world. Many of us find this to be an unpersuasive justification for denying state recognition of same-sex couples, but this is not a sufficient basis to render such policies unconstitutional. Federalism requires that state governments are allowed to adopt unsound policies. Indeed, it is only by allowing a diversity of policy choices to be made that we can discover the mix of policies that best protect individual liberty and facilitate the pursuit of happiness.

Advocates of same-sex marriage, myself included, believe it is proper to expand the traditional definition of marriage to include same-sex couples. Insofar as the state is in the business of licensing and recognizing marriages, it is prudent, wise, and just to recognize that two people of the same sex are just as capable of creating an enduring, committed relationship and providing for the care and nurturing of children as many heterosexual couples. But this does not mean a state’s refusal to take this step violates the Constitution. Not every policy that is unwise or even unjust is unconstitutional. 

Jonathan H. Adler is the Johan Verheij Memorial professor of Law at the Case Western Reserve University School of Law.  He participated in an amicus brief of law professors in United States v. Windsor urging the Supreme Court to invalidate Section 3 of the federal Defense of Marriage Act (DOMA) on federalism grounds.

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  • sarcasmic||

    Does California have the lawful power to outlaw same-sex unions without federal interference?

    It is such a shame that all those same-sex couples are rotting away in prison for committing the outlawed offense of entering into marriage.

    I hope the court sets them free.

    Such a shame.

  • wideguy||

    I don't really understand your comment.
    My thought is a question. Would a State have the authority to ban "interracial" marriage?
    They don't, because that is clearly a case of inequality under the law.
    So, the question for me turns on the difference between "racial" differences and sexual differences. Is there some fundamental distinction that makes one of these a clear violation of equal protection, and the other not?

  • Rich||

    “No State shall...deny to any person within its jurisdiction the equal protection of the laws.”

    I expect to see polygamous marriage nationally legal within a decade.

  • np||

    A major difference is that polygamy is actually a serious felony.

    Decriminalizing polygamy and simply revoking licenses or denying state recognition would bring it under equal protection, so to speak. You would allow people to exercise their beliefs (e.g. a polygamous church) without granting them state recognition.

    But really, there's two separate things here: equal protection and equal privilege.

    The later is part of state power and applies to all aspects of life as can be seen by the way-too-many regulations regarding licensing and permits. Governments already discriminates extensively in their exercise of state power, denying privileges to those unfavored (as codified by law), so the question is less of principle and more broadening state power to grant more privileges.

    Personally, if you can get married, wonderful. If not, *shrug*. As far as privileges goes, extending the same for married couples to all individuals, who bear the brunt of taxes and are the least privileged, would be the most ideal and such universal granting would wind up ending the privilege itself.

  • R C Dean||

    A major difference is that polygamy is actually a serious felony.

    Makes no difference to an honest Equal Protection analysis.

    We'll see if the Court redefines marraige nationally, and if so, how, but I don't see any convincing, principled arguments for limiting a Constitutional right to marriage to marriages between two people. If "man + woman" is an arbitrary and thus unacceptable limitation, why is "two people" perfectly OK?

  • np||

    I'm with you there, but then if we could actually do that, that would signal a huge shift in sentiment. It would possibly mean repealing state involvement in other area--since universal granting of privileges effectively ends it--based upon the same logic of arbitrary and capricious limitations to be unacceptable.

    But I doubt that. Even here with two people, the courts will find some way, citing commerce clause (yes, it's that flexible), general welfare, etc

  • Tony||

    Liberalizing marriage to some degree does not automatically require us to liberalize it to all degrees.

    Allowing gay marriage does not mean we have to legally recognize human+potato unions anymore than allowing interracial marriage did.

  • R C Dean||

    Hey, Warty.

    Watch me not respond to Tony here. See, this particular Tony emittance just doesn't do anything for me.

  • RightNut||

    The push for recognized polygamy has already started. Way back in the 90s gay marriage opponents argued that opening up marriage to same-sex couples would force states to open up marriage to multiple partners, and were told that polygamy would never happen by gay marriage proponents.

    The obvious solution which never seems to be grasped by anyone is that marriage shouldn't be within the power of the state.

  • ||

    The obvious solution which never seems to be grasped by anyone is that marriage shouldn't be within the power of the state.

    Forever and ever, amen.

  • Night Elf Mohawk||

    Does a progressive income tax violate equal protection?

  • Rich||

    No, because it doesn't take away the wealthy folks' safety net.

  • Ted S.||

    No, because the constitution was amended to allow income taxes.

  • Night Elf Mohawk||

    So it would be constitutional to require only blacks to pay pay income taxes, because the constitution was amended to allow income taxes? Really?

  • thom||

    Based on the Obamacare decision, you'd have to assume so.

  • Eduard van Haalen||

    "just as there wasn’t a federalism problem when the Supreme Court struck down Chicago’s gun ban in McDonald v. Chicago, there would be no federalism problem if it now struck down California’s ban on same-sex marriage."

    No federalism problem, because right after the Second Amendment you have the Gay Marriage Amendment, providing for equal status for gay marriages vis-a-vis regular marriiages.

  • Virginian||

    9th Amendment. There's nothing in the Constitution about food and drink, but that doesn't mean Bloomberg's idiocy is constitutional.

  • Eduard van Haalen||

    The 9th Amendment refers to "rights retained by the people." Retained when? Presumably when the Constitution was ratified in the late 18th century. Was there a right to gay-marry at that time?

  • ||

    Was there a right to gay-marry at that time?

    Yes, because the Constitution identifies certain rights, it doesn't grant them or list them entirely.

  • Night Elf Mohawk||

    Can you list some of the jurisdictions in which this right was recognized?

  • Virginian||

    Just because a right is denied, doesn't mean the right doesn't exist. I have the right to bear arms. The fact that NYC would arrest me for doing so doesn't remove my rights.

  • Night Elf Mohawk||

    And just because you assert a right exists doesn't mean that it does exist. Marriage has been well-known for a non-trivial time. In all of that time, where has gay marriage been recognized?

  • ||

    Implying that gay marriage being "recognized" has something to do with whether gays should be allowed to marry.

  • Night Elf Mohawk||

    Que?

  • Night Elf Mohawk||

    If someone's going to make a 9th Amendment argument about "retained" rights, whether that right even existed to be retained would have something to do with the argument. That's not the only argument regarding gay marriage, but it was the one being discussed above.

  • ||

    Gays retain the right to gay marry. That no one wanted to gay marry or thought of gay marrying during the time of the Constitution (although we have no way of knowing if that is true) is irrelevant. "Arms" didn't include modern weapons during the writing of the Constitution. Does that mean we don't have the right to bear them?

  • Night Elf Mohawk||

    "Arms" had a definition at the time of writing of the Constitution. Modern weapons can fit that definition.

    "Marriage" had a definition at the time of the writing of the Constitution. Gay marriage does not fit that definition.

    You can make baseless assertions that a right existed, but that doesn't make it so.

    There are plenty of reasons why gay marriage should not be prohibited, but the specious argument that the right to gay marriage always existed isn't one of them.

  • ||

    Fuck off statist.

  • ||

    Could you have named a jurisdiction one year ago that recognized the right to smoke weed?

  • Night Elf Mohawk||

    Pot hasn't always been illegal.

  • ||

    So?

    Are we playing the "how many arbitrary points can I make" game? Why did no one tell me?

  • Night Elf Mohawk||

    There's nothing arbitrary about pointing out that pot has been legal in the past while gay marriage never has, if the argument is about "retained" rights under the 9th.

    You can only retain what you've had.

  • RightNut||

    There's nothing arbitrary about pointing out that pot has been legal in the past while gay marriage never has,

    In ancient Greece pederastry was legal, even encouraged. Should we allow it because it was legal in the past?

  • ||

    OK so rights can't apply to any technology or concept not existing during the time of the Constitution, since apparently to retain those rights, they must have existed for all time, or at least during the time of the Constitution. Great argument, asshat.

  • Night Elf Mohawk||

    Except that marriage did exist at the time of the Constitution and gay marriage wasn't part of it.

    Property rights, or the right to travel, or whatever other rights are relevant are merely extended by new technologies or concepts. There was no need for there to be cars for there to be a right to own a car, because that's simply a particular case of the general case of property.

    At the time, concepts of property and technology didn't exclude, say, cars. The concept of marriage did exclude gay marriage. If you can't grasp the difference between concepts that were not yet considered and concepts that were considered and rejected, I can't help you.

  • ||

    OK, please prove that colonialists considered and rejected gay marriage.

    and I guess there's no right to interracial marriage, since colonialists "rejected" interracial marriage.

    You're a retard and a statist, fuck off.

  • Night Elf Mohawk||

    I can agree with X without agreeing with every argument that purports to support X. If you think that makes me a retard or a statist, that's your shortcoming, not mine.

    Equal protection provides a cogent basis for arguing in support of gay marriage. That the right to gay marriage existed at the time of the Bill of Rights and is therefore retained under the 9th is just specious.

  • ||

    You're a retard because your argument makes no sense.

    You're a statist because you are saying people don't have automatically have the right to voluntarily do something which has no effect on anyone else.

    Don't flatter yourself by thinking this has to do with other arguments.

  • Night Elf Mohawk||

    Just because you can't understand it doesn't mean it makes no sense.

    You're a statist because you are saying people don't have automatically have the right to voluntarily do something which has no effect on anyone else.

    Show me where I said that. It's not my fault you confuse the Constitution with something out of a philosophy class. You could fill a book with voluntary actions that don't hurt third parties that weren't recognized as rights in the late 18th century.

    Before you go around calling people retards, you should be able to grasp the difference between rights under the Constitution -- which, again, was the subject above -- and rights under a theory of natural rights, or whatever other theory you choose. Hint: they aren't necessarily the same.

  • Bill Dalasio||

    "You're a statist because you are saying people don't have automatically have the right to voluntarily do something which has no effect on anyone else."

    Except, I don't see any prohibition on gay people having a marriage ceremony. What I do see is a number of jurisdictions deciding such ceremonies do not create a legally recognized relationship. To the extent we're talking about a public, legal (governmental) recognition of a relationship, we're no longer talking about the individual private sphere.

  • Michael Ejercito||

    "Marriage between two persons of one sex could have no validity, as none of the ends of matrimony could be accomplished thereby. It has always, therefore, been deemed requisite to the entire validity of every marriage . . . that the parties should be of different sex.”

    Joel Prentiss Bishop, Commentaries on the Law of Marriage
    & Divorce § 225 (1st ed. 1852), quoted in Defendant Sally Howe Smith’s Cross-Motion for Summary Judgment
    and Brief in Support With Consolidated Opposition to Plaintiff’s Motion
    for Summary Judgment, Bishop v. United States, 04-CV-848-TCK-TLW (N.D. Okla.), at 18

  • Bill Dalasio||

    That seems a weak argument. Rights spelled out don't strike me as particularly technology dependent. They're specified in much broader terms. "Arms" is broad enough a choice that it doesn't restrict itself to flintlocks or muskets. "The Press" is a broad enough term that the inclusion of more advanced technologies doesn't affect the principle. "Unreasonable search and seizure" is sufficiently broad that technological advances don't create new exceptions.
    In contrast, "retained" is a pretty specific term.

  • Virginian||

    So then one has no right to own a tin can. Or an electric lamp. Or any modern medicine. Because those weren't around when the Constitution was ratified.

    Not to mention all the actions that we can do that we couldn't in 1789. Bungee jumping, skydiving, riding a ski lift, flying a helicopter. No Constitutional right to that either.

  • Night Elf Mohawk||

    Look, if you can't get the difference between having a definition of marriage that didn't include gay marriage -- not because no one could think of it or the technology didn't exist -- even at the time and a definition of property that could encompass new inventions and discoveries, I don't know what to tell you.

    "They didn't know about cell phones and we can own those, therefore gay marriage should be legal" completely ignores that marriage, unlike cell phones, existed at the time and wasn't defined as including gay marriage.

  • ||

    That's a distinction without a difference. The right for gays to marry each other and the right for non-gays to marry each other are not mutually exclusive definitions of marriage.

    I could argue that the definition of travel didn't include travel by car, therefore you have no right to travel by car. If Benjamin Franklin had the idea to make a car but it was "rejected" by society (which simply means that no one made a car), would that fucking change your retarded logic?

    No, it wouldn't because you're a retarded fuck who is trying to bridge the gap to a conclusion instead of defending a principle.

  • Virginian||

    I didn't kick this off buddy. Ol' EvH did.

    The whole point of the 9th is to encompass future behaviors and activities that the Framers knew would result, but did not know the specifics of.

    The Constitution grants the federal government specific, limited powers. The power to define, regulate, or oversee marriages is not one of those powers. At best, the states can regulate it as they see fit, under the 10th Amendment. DOMA is unconstitutional as written. Prop 8 is another matter.

  • Night Elf Mohawk||

    The power to define, regulate, or oversee marriages is not one of those powers. At best, the states can regulate it as they see fit, under the 10th Amendment.

    It can be argued pretty strongly that the 14th says the federal government has the power to prevent the states from applying marriage laws unequally.

  • garretep||

    The idea that the original colonists rejected gay marriage is untrue. When the constitution was written there were no laws concerning marriage, it was a church matter. If you could find a church willing to do it I guess you could have gotten gay married. Sodomy laws were in place in some states, but I think we all know how that turned out.

  • Night Elf Mohawk||

    If you could find a church willing to do it I guess you could have gotten gay married.

    And the fact that 0% of churches did gay weddings in colonial America doesn't speak at all to whether original colonists rejected gay marriage?

    Sodomy laws were in place in some states, but I think we all know how that turned out.

    And we'll also see how gay marriage turns out. That, however, doesn't mean there is a retained right to gay marriage any more than there was a retained right to sodomy. And by "some states" you mean 12 of the 13 at the time of the ratification of the Bill of Rights, of course.

  • Virginian||

    By that logic, we have no right to own antibiotics, tin cans, or electric lights.

  • Marla Singer||

    That in no way follows from his stated logic. Also, it's a dumbass thing to say, and I expect better from you.

  • Eduard van Haalen||

    Look at this discussion! My troll-fu is excellent!

  • R C Dean||

    If the Court finds that marriage is a Constitutional right, then no, traditional federalism analysis would say that no state has the authority to deny that right.

    That's the Equal Protection issue. The Full Faith and Credit issue is different. The Court has never held that Full Faith and Credit means that states may not discriminate against non-residents with respect to fundamental rights. For the Court to rule that states are required to recognize out-of-state gay marriages, they would have to either (a) change that jurisdprudence to encompass non-fundamental rights or (b) rule that marriage is a fundamental right.

    If they do the latter, then I think they have to rule that Equal Protection requires states to issue gay marriage licenses.

    Application of this broadening of FF&C (and EP) to other issues will be interesting. I don't see any way that a state could refuse to recognize an out of state CCW license, or refuse to issue one on a shall-issue basis, for example.

  • R C Dean||

    Should be:

    The Court has never held that Full Faith and Credit means that states may not discriminate against non-residents with respect to rights other than fundamental rights.

  • wareagle||

    I guess it's too difficult to ask why the state should be involved in marriage outside of its role in providing an avenue for resolving contract disputes. People either have the right to associate with whom they wish or they don't.

  • Night Elf Mohawk||

    Not too difficult. Probably too late.

  • Drax the Destroyer||

    Yeah, that's for sure. Half(All?) the crap we libertarian types give a shit about was "settled" before the 1950's.

  • Rich||

    The political science is settled!

  • Fist of Etiquette||

    A World Without Marriage Licenses: A film strip

    Imagine a world where the government doesn't issue licenses allowing couples to marry. Without recognition entitlement incentives, people don't couple up. The family unit withers and dies as roaming gangs of single marauders roam the countryside not creating stable, monogamous relationships. The Earth is a barren wasteland, devoid of cul de sacs and minivans. Soccer practice is never invented. All because the licenses we all rely on, statists and libertarians alike, never existed.

    Do you understand now, Jimmy, why it's so important to get a bureaucratic stamp of approval?

  • SugarFree||

    "Come back, zinc! Come back!"

  • sarcasmic||

    You've got a good point. I mean, how can something exist if it is not recognized and defined by the government?

  • R C Dean||

    That's the funny thing. Gay people have always been able to get married if they can find a church that will perform the wedding.

    The state may not recognize that marriage, but they are married even though they are not licensed.

  • Rich||

    Without recognition entitlement incentives, people don't couple up.

    Can't we just just give everyone a "Human Participation Award"?

  • Another David||

    Everyone except Donald Trump, maybe.

  • Wind Rider||

    ^^^This. While the whole morals trick gets the religious types exercised over the issue, at its base, it's a money trick. The ability of humans to form 'teams'. And if you've already massively tilted the board in favor of one type of team, then it is somewhat hypocritical to deny other team lineups.

    I would not at all mind if the 'team lineup' aspect was taken out of consideration, and wonder how much howling (probably a lot) would result if 'free-agency' wasn't such an easy thing, by severely restricting the recognized reasons for divorce, beyond someone waking up one day and deciding they were 'unhappy' or some such. Alternately, since it is a money trick at its base, instill a penalty for it, such as 'ok, you can get out of the arrangement that's gained you tax advantage and such, here's the bill to bring you on par with those that didn't take that route'.

  • Reggie1971||

    I think it could be simply stated that gays have exactly the same right to get married as anyone else, they simply have to marry someone of the opposite sex.

    Yes, you've heard that point before. The collective groans in response were deafening. Nonetheless, it has solid legal merit unless you insist the definition of marriage has to be changed.

    Then you have this, two brothers who want to marry each. A brother and sister who are of an age where they cannot procreate who want to do the same. Three, four, or nineteen people who want to marry each other. Or someone who simply wants to marry himself.

    Why don't we nip all this in the bud and support the ELIMINATION of government licensing of marriage in the country. If people in sexual or nonsexual relationships wish to form civil unions, and individual states want to accomodate that, they should be allowed that option.

  • thom||

    It's a losing point. In this country, the vast majority of heterosexual couples see marriage as government recognition of their relationship.

    That's why homophobes are so dead set against it. To simple people who confuse government recognition with societal approval, gay marriage could be scary.

    Fortunately, the majority is no longer homophobic, just simple.

  • sarcasmic||

    So those who will accept no compromise that does not include redefining marriage are simple minded retards who cannot comprehend societal approval without government recognition.

    Thank you for clearing that up.

  • thom||

    No prob.

    The whole "redefining marriage" stuff never ceases to amuse me. The institution of marriage looks much different today than it did 150 years ago and will look much different 150 years from now. It is being constantly redefined.

  • Reggie1971||

    "In this country, the vast majority of heterosexual couples see marriage as government recognition of their relationship."

    I really don't think so. When people envision being married, I doubt that filing papers at the courthouse is part of the fantasy. Next to the romantic and family components that are a part of marriage, government endorsement of it is fairly obscure in peoples' minds. Getting a marriage license isn't something that is celebrated by heterosexual couples. It's a chore.

  • thom||

    Nonsense. If this was true, why would people go to court and get married? It's all about filing the papers and making it official.

  • ||

    I think it could be simply stated that gays have exactly the same right to get married as anyone else, they simply have to marry someone of the opposite sex.

    Yes, you've heard that point before. The collective groans in response were deafening. Nonetheless, it has solid legal merit unless you insist the definition of marriage has to be changed.

    The rejoinder to this has also been mentioned here before. With that logic it could be argued that a person has every right to get married.... to another person of the same race. If your idea has solid legal merit, than this has exactly the same merit and it is perfectly legal for states to deny interracial marriages recognition.

  • Reggie1971||

    Yes, except that the law in certain cases today and for the forseeable future draws distinction based on sex, when it does not do so for race.

    Do we draft women into the army? Do we have unisex restrooms at courthouses?

  • ||

    "Certain cases". Which is related to discrimination in marriage how?.

    We should draft women into the army if we're drafting anyone, as long as they make the cut. We don't take men who can't make the physical requirements.

    Are there any laws about the sexual requirements of bathrooms? Biological functions are related to how people use the restroom (and some places do indeed have unisex stalls), but not to choice in marriage.

  • Reggie1971||

    "Are there any laws about the sexual requirements of bathrooms? Biological functions are related to how people use the restroom (and some places do indeed have unisex stalls), but not to choice in marriage."

    The question is about whether or not legal distinctions are drawn by the government between the sexes. The answer is that they are. In any case, this is apart from the main point I'm trying to make.

    You mention "choice in marriage". That is not at issue. This is about what state governments endorse through license. There is nothing explicit or implicit in the Constitution compelling states to recognize any marriage.

  • ||

    The legal distinctions are dependent on the point of the legal distinctions. There's an actual, practical (physical) point to sex-divided restrooms, it's actually relevant to the issue. And both men and women have equal treatment in those cases. Sex isn't relevant to the issue of marriage under the law, and we're talking about recognizing a relationship, not about physical accommodations.

    There is nothing explicit or implicit in the Constitution compelling states to recognize any marriage.

    But if a government IS recognizing marriage, they can't make arbitrary distinctions such as those based on race or sex.

  • Mickey Rat||

    "... they can't make arbitrary distinctions such as those based on race or sex."

    How is making distinction between sexual relationships based on sex "arbitrary"? How does that word apply? You seem to be using it as substitute for "I don't like it".

  • ||

    There's a reason in each of those cases why sex is actually relevant to the issue. The same claim can't be made about marriage today.

  • ||

    Well, sex isn't directly relevant to drafting, but I already wrote what the relevant issue is: physique.

  • SumpTump||

    Dude is talking a LOT of smack!

    www.GoinAnon.da.bz

  • KenP||

    The Constitution separates church and state. Early marriages were recorded by the church. That held true to fairly recent times. Secular marriage didn't carry the accept of church nuptials. Law covering recording marriages by local governments is a fairly recent occurrence and a record keeping function more than a disregard of church rights.

    Is there a separation issue that could be argued?

  • Thomas O.||

    "The claim that a refusal to recognize same-sex marriage violates the original public meaning of the 14th Amendment scarcely needs a response. The Equal Protection and Due Process clauses were enacted to ensure the fundamental liberties of newly freed slaves and prevent the imposition of arbitrary and invidious classifications based upon race. The clauses were not then, and have never been, understood to invalidate any and all distinctions or restrictions imposed by state governments, including those based upon sex."

    Then the amendment writers should've explicitly said that in the amendment wording. If you're going to tack something on to the Constitution, our sacrosanct law of the land, it needs to be explicitly defined, we can't just leave law up to a guessing game of what the Founding Fathers intended or what the Federalist Papers said. And those two examples do not officially carry any legal weight in this nation, only the Constitution does. So you better get the wording right.

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  • Kurbster||

    you used this pathetic excuse in the last article you stunk up

    And I don't see tax breaks being denied to infertile couples...if the reason for marriage benefits is to "encourage family creation."

    Listen here: nothing in any of these gay marriage laws is forcing religious institutions to start performing gay ceremonies. The institution of marriage on the state and federal level should be secular and therefore free from religious dogma.

    And I do oppose gay cultural marxists who force private businesses into making special acomodations just for themselves. This is the government we're talking about, and the government doesn't have the right to pick and choose

  • Mickey Rat||

    "And I don't see tax breaks being denied to infertile couples..."

    What tax breaks are you talking about?

  • ||

    As soon as Mr. Shapiro used the words "ban on same-sex marriage" in his reference to Prop. 8, he lost the debate. He is mistaken to view the issue as a negative rights issue. It is not. The fact that a government doesn't provide incentives or benefits for twiddling one's thumbs, doesn't mean that thumb twiddling is "banned"!!!!

    Then he lost it several times more by not limiting the 14th amendment to its very narrow, very straightforward, and very clear historical meaning.

    In most "debates" on the issue, both sides lost in my book. FINALLY, Mr. Adler argued it the way I would have.

  • riseboroughandrea||

    what Valerie implied I'm taken by surprise that a person able to make $9303 in 4 weeks on the internet. did you look at this web page www.fly38.com

  • aaliyahjuhan||

    Tristan. I just agree... Alexander`s blurb is nice, last week I bought themselves a Porsche 911 sincee geting a check for $8987 thiss month and more than ten-grand last month. with-out any question its the most comfortable job I have ever had. I began this 5 months ago and almost straight away began to bring home minimum $81.. p/h. I went to this site,
    http://jump30.com

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