Isn't banning gay marriage technically Unconstitutional?

Question

Ok, I don't want this garbage about it's not God's way, lets look past that just for this single minute and answer my question without mentioning a religion(you can't do that, it's called seperation of church and state, meaning you can't make a law based on a religion). But yes, technically don't we all have equal rights no matter how different we are (even if your a homo...not to be derogatory.) And isn't Bush basing his law on his Christian beliefs and not on what the Constitution says to do and what is technically right to be equal.

Answer 1

First, I would like to address this portion of your question, "...it's called separation of church and state, meaning you can't make a law based on a religion." I find this comment disturbing for the simple fact that many of America's laws correspond to moral values mentioned in several religious texts.

The text of the First Amendment states, "...Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

The Constitution states that Congress cannot make a law concerning the establishment of religion. Also, I would like to mention that Congress cannot deny the free practice of religion which many people ignore these days.

In regards to your question, however, President Bush is basing his law on a belief. Anything a person says or does is based on some type of idea so what is the crime here?

It seems that you're mixing text from the Declaration of Independence with the Constitution.

When President Bush was put into office, he pledged to defend the Constitution of the United States. According to his belief, he is doing just that.

I think the motive in promoting a Federal Marriage Amendment is to stop activist judges who think that they make the laws in this country. Someone ought to inform them that they simply interpret the law.

Answer 2

Well, if it's banning by constitutional amendment, then by definition it cannot be unconstitutional.

If it's banning by other law, then it could be unconstitutional under the Equal Protection Clause, I suppose. The only problem with this argument is that homosexuality is not a "suspect classification" under the constitution as are race/national origin (strict scrutiny) or gender (intermediate scrutiny).

Because homosexuality is not a suspect class, so long as the government has a rational basis for acting - meaning, pretty much anything - the government is free to act. "Homosexual couples make less stable families which would be detrimental to our society", if advanced as a basis for banning gay marraige, is sufficient to constitute a rational basis - it's a very weak test. Doesn't matter whether the legislators are all basing it on their Christian beliefs, or because they flipped a coin earlier in the day - their actual intent is irrelevant.

Lawrence doesn't help you because that concerned intimate association and right to privacy under the Due Process clause; marriage, however, is a much more public act and so I doubt you could make the privacy argument.

In sum, I think the constitutional argument is a loser here.

Answer 3

No, it's not necessarily unconstitutional. At least any more so than a state refusing to allow siblings to legally marry one another. In essence it comes down to a question of public perception and what the majority will accept. I can't help but believe that the tendency to use the federal courts to enact social reform in the face of overwhelming public opinion is a mistake. This is for two reasons. It isn't terribly effective, judges read the papers too, and there is going to be a raft of more conservative judges moving to higher benches. (Remember that the Democrats held the White House for only eight of the last twenty six years.) What might be an acceptable strategy for liberal concerns today could turn out to be a nightmare tomorrow when the roles are reversed and a conservative judiciary begins to legislate social matters from the bench. If you really want to see gay marriage legalized then your only course is to change the public opinion state by state. Thus far every time it has come to a state wide vote, in any state,,,including California, the notion of legalized gay marriage has been destroyed at the ballot box by a huge margin. Until that changes the issue is moot.

Answer 4

As of now, I would have to say yes. However, if they changed the Constitution to ban it then no. Now, to those of you who say that marriage is not a right, you are incorrect. This is due to the fact that there are things like tax breaks for married couples. Now personally, I think tax breaks a total BS, but that is just me. However, due to that it is unconstitutional to offer that to some and not others. My personal solution to the problem is get rid of state marriages all together. Just take it back to how it used to be, a religious institution. That way, gays can get married through a church, but the government won't have anything to do with it. No tax breaks for anyone. Just a simple flat tax for everyone.

Answer 5

Yes banning gay unions granting them the same special rights that heteorsexual unions get from their states is unconstitutional.

Let me tell you a little secret that the rightwing doesn't want to say outloud: the reason they tried to get a constitutional amendment banning gay marriage is because they know when this does finally get to the Supreme Court, that there is no way it can be denied by the current constitution.

There only options are going to be either have the states recognize gay unions by the state just as heteorsexual unions are OR to eliminate all the 'special rights' that heteorsexual couples get from the state... ie, next of kin rights, tax dependents, foreign spouse citizenship, inheritance rights, etc...

If option 2 is the end result, heteorsexual couples will still be free to marry in their churches, etc.. just they will no longer be given special rights from the state based on that union. The sacred sanctity that they are always referring to would still exist... just not 'on the books.'

Answer 6

I agree that all these states and any federal amendments are unconstitutional.
We are supposedly promised LIfe, Liberty, and the Pursuit of Happiness... (Just so long as it does NOT interfere with anybody else's rights.)
While I do not agree with homosexuality, I will not begrudge a man or woman equal rights based upon sexual orientation.

I see all this hoopla right now as politically motivated and wrong on many levels.
Therefore, the people that can actually think for themselves, need to get out and VOTE and remove the neo-conservative SCUM that has littered the hallowed grounds of the White House.

Homosexuality has been with us for thousands of years, and it will remain with us for just as long,
Legal rights are due ALL who are legal citizens, unless the citizen is incarcerated, and then, there are still certain rights to be had.

Answer 7

Many aspects of the Constitution are based on what is known as "Common Law". Common law is something that has existed for many years and is the basis for enacted law. Common law has recognized marriage as being between a man and a woman and nothing else. Thus from a common law strand point, marriage of a man to a man or a woman to a woman does not meet that standards outlined in common law.

Answer 8

Yes, banning gay marriage goes against the right to, "life, liberty and the pursuit of happiness" at the very least. But all laws, including the constitution are open to interpretation and minorities will always have trouble having their voices heard about the majority.

Answer 9

There needs to be another type of union for non heterosexuals. Marriage is a man and a woman.
Etymology: Middle English mariage, from Anglo-French, from marier to marry
1 a (1) : the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law (2) : the state of being united to a person of the same sex in a relationship like that of a traditional marriage

Answer 10

i can answer this question biblically and constitutionaly

we have to base our laws off of out founding father and our founding father were all christians so there for its not right (biblically) to marry someone of the same sex. Marrige in a way is to have children and start a family marrage is a way to show that you wanna start a family together and i dont see the point if you are the same sex to get married b/c the only way you can start a family is adopt or artical birth but i dont care if gay peolpe get married b/c i have tons of gay friends and most agree with me that there is no point ni getting married b/c you know you love that person and marrage is a way to have sex and not sin and be devoted to each other and have childern so you have to be open minded!