Shouldn't the constitutional separation of church and state be considered when debating gay marriage?

Question

I'm not for or against gay marriage.
I'm not for or against gay rights.
All politics aside, when we look at this from a strictly legal view point, aside from nearly all churche's definition of marriage between a man and woman, is gay marriage actaully a violation of the federal law. I know it is a violation of several state constitutions; "all matters not address under federal law be delegated to the state".
So what gives?
What are the REAL legal agruements for and against. What are the specific sources?
Please, personal opion and political banter aside...

Answer 1

Interestingly, once you set aside the rhetoric and god-speak, the principal argument for and against gay marriage is the same thing. The 14th amendment to the US constitution guarantees "equal protection under the law" and due process to all Americans. Former Supreme Court Justice O'Connor wrote an opinion (I can't remember which one, but it was a while ago) that defined these protections as guaranteeing similar treatment to "similar situated people."

So, gay marriage advocates argue that homosexuals are similarly situated to heterosexuals, as all are mutually consenting adults, and therefore are entitled to the "similar" right to marrry the person that they love.

GM opponents, on the other hand, while agreeing that homosexuals are similarly situated to heterosexuals, argue that homosexuals already have their "similar right"--that a homosexual can marry someone of the opposite sex, just as a heterosexual person can.

It's an interesting and, as far as I know, unique situation in American legal debate.

Answer 2

The "separation of church and state" is a phrase that you can use to mean virtually anything. Does "separation of church and state" mean that our society cannot take a biblical command like "thou shalt not bare false witness" and turn that principle into laws against perjury, fraud, libel and slander? The only thing "separation of church and state" means to me is that no church can make laws. Making laws is what is supposed to be done by elected legislatures or the voters. A church can "govern" its own congregation, but not anyone else outside of its congregation.

I have NO idea what you mean by "All politics aside, .... Please, personal opion [sic] and political banter aside....." Why should these things be "aside"?

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Now. As to legal arguments. If a legislature or the voters want to allow for gay marriage then, as far as I'm concerned -- hooray! I'm gay and I'll be glad for that! But does the law already "allow" for gay marriage? Absolutely not!

The U.S. Constitution does not address the issue. Not at all. It is not a rule that gay marriage must be "allowed." It is a choice to be made by the states and, to a lesser extent, the federal government (within its constitutionally limited law-making authority). Yes, there is a federal law -- passed in 1996 -- that says the federal government will not recognize any same-sex marriage if it is legalized in any state.

Answer 3

Unfortunately I can't offer a legal opinion as I am not a lawyer.

But I would like to point out a fact about "gay marriage" that no one seems to recognize: that the leaders of the homosexual community have a much more expansive agenda that doesn't just stop with the legalization of same-sex marriages.

Assume that gay marriage is legalized and a church which does not condone homosexuality refuses to conduct gay marriages. Does anyone doubt that there will be multiple and many expensive anti-discrimination lawsuits filed against the churches -- seeking to force a legal imposition of the churches -- even though that would of and in itself be a breakdown of the separation rules?

Assume that gay marriages are legal. Then it becomes discriminatory to not teach children that gay marriages are okay.

Do you see where this leads? I for one do not like the slippery slope that comes from re-defining marriage legally to something it has never been.

Answer 4

Most of the states that have laws against gay marriage passed them after it became an issue. I seriously doubt there is anything in the bible about it but even if there was, as you say, this is a secular country and not a theocracy. Its mainly an issue because the rat creatures called republicans in Congress make a big deal out of it to get votes. Gay marriage hurts no heterosexual in any way and its a shame gay couples in love can't be married if they wish to be. Not too long ago interracial marriage was just as big an issue and religious hate mongers found biblical prohibitions against it too. Eventually gay marriage will be accepted.

Answer 5

I do agree that church and state are not supposed to mixed. Gay marriage shouldn't be considered a legal/gov't issue. It shouldnt be an issue at all. But I will refrain from voising my opnion.

The phrase separation of church and state is a common interpretation of the Establishment Clause of the First Amendment, which reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ."

Answer 6

I believe the answer lies in the "pursuit of happiness" under federal law. While marriages were generally based on loveless arrangements prior to the 1900's since then they have been based on romantic notions of falling in love. State laws that make marriage unavailable to people who fall in love with the same sex denies the right to pursue happiness by marrying the person with which one falls in love. State laws and federal laws for that matter have often been driven by predjudice and misunderstanding. The fact that gay marriage has been declared illegal does not make them any more invalid than when America decided interracial marriage was illegal, it just points to the need for more understanding.
john

Answer 7

What does "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" have to do with gay marriage?

The real issue from a federal level is Article IV, Section1. "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." Which can be construed by activist judges to force the people of one state to recognize gay marraige from another state.

Answer 8

it rather is sounds just about precisely like what I suggested in my debate at college. I completely agree! there isn't something incorrect with gay marriage and there is not something incorrect with gays. that is stated as progression, people! What surpassed off to "liberty and justice for all?" you're appropriate, we are secure via the form. that is only a disgrace that something of the worldwide is blind and boastful.

Answer 9

The term "Marriage" was reserved for heterosexuals most of human history. In the last 20 years gays began demanding full equal rights.
The majority is supposed to rule with respect to the minority, right?
I am not gay, but when it comes to rights, or equality under the law, I think gays have a case. ie call the union between people what you may, but do not discriminate people.

Answer 10

There is no reason the federal or state governments cannot
ban gay marriage...
It does not have to be a religions prohibition...
The bible says nothing about marijuana being illegal and the Federal Govt. has decided to make it illegal despite several state attempts to legalize it...