How do you ban something that has never been legal?

Question

I hear a lot about how some people want to ban gay marriage. Please pardon my ignorance but I was under the impression that two people of the same gender marrying has been illegal in every state for as long as the USA has existed.

If that is true how can people be trying to ban it?

Isn't that like saying people who are against the legalization of certain drugs are trying to "ban" those drugs?

This makes no sense to me.

OMG some of you are right, it hasn't specifically been illegal in the US. I forgot about all those gay marriages in the early and mid nineteenth century with unshaven brides and lots of feathery accessories. It has never been discussed before because previous generations had some common sense and understood exactly what marriage was and it's intent. Like abortion the founding fathers could never have imagined there would ever be a serious discussion on this topic.

Ok people, lets try to concentrate. All the examples cited are very recent and the term ban was used prior to all of them. It surprises me that so many have such a hard time understanding the question.

Answer 1

Good question...it's a nice semantic way of making the listener think what they are being asked about is already legitimate when in fact it is not.

Answer 2

The other side of this issue is, "How do you enforce laws against something which is NOT illegal?"

Just because something is not specifically LEGALIZED doesn't make it automatically ILLEGAL. If that were the case, no innovations or improvements to anything would ever occur. Something has to be specifically MADE ILLEGAL for it to be considered illegal in the US.

LSD in the 60s was a brand new psychedelic, it wasn't specifically outlawed for many months, not having been addressed at that time, so it was considered, if anything, "extralegal", without lawful status, the same as Gay Marriage.

This is why some people want to illegalize, or "ban" same-sex marriage, because they realize unless their legislatures specifically ban the practice, (which many states have done) there is nothing someone can do legally to enjoin (or prevent) a same-sex marriage in a state which does not specifically prohibit such social contracts.

Answer 3

Excellent point, so why on Earth do the Republicans keep trying to amend the Constitution to do it? What are they afraid of? Don't they realize what a horrific precedent it would set if they amended the Constitution solely for the purpose of discriminating against one group?

[edit]
For those of you who are clueless about the Constitution, it's purpose is NOT to make certain activities illegal. Prohibition was the only previous attempt at that so far, and it was an ill-conceived idea and a miserable failure. The purpose of the Constitution is to prevent the government from becoming oppressive by protecting our freedoms and placing restrictions on what type of laws Congress can pass. If an amendment is passed expressly for the purpose of discriminating against ANY group, it opens the door for further discrimination. The first 150 years of our nation's history were an uphill battle to remove injustices and inequities, such as slavery, denying women the right to vote, etc. We've finally reached a relatively enlightened state of near-equality, and the proposed ban would be a gigantic step backwards. I'm straighter than most Republicans*, but I would gladly fight to the death to prevent the government from doing such irreparable damage to our freedom and justice. As I've said many times before, taking rights away from anyone takes them away from everyone. You can't make exceptions to liberty without spoiling it for the whole nation.

By the way, Brian, it's not just "certain people" talking about a ban, it's your President. See the link, then feel free to give him a call or send him a letter and tell him he's wasting his time and our money on this psychotic witch hunt.

[2nd edit]
* Perhaps I should have said, "I'm straighter than ANY Republican", because most of you who aren't practicing homosexuals are probably latent ones. I don't know why else anyone would feel so threatened by something that doesn't affect your life in any way, shape, or form. I'm not saying there's anything wrong with being homosexual; I'm just saying there must be some deep-seated insecurity or uncertainty feeding such irrational fear and hatred.

Answer 4

I don't know that that is the case, no one ever even considered the possibility of same sex marriage until recently, so I don't think there were any laws on the books that specifically prohibited it until recent laws were passed in reaction to the gay rights movement their push for same sex marriage.

Also, not a good analogy -- Marijuana, Opium, Cocaine, LSD were all legal until they were banned. To say these drugs were never legal is incorrect.

PS I understood the question perfectly well. If you want to ignore the fact that :"legal' and "illegal" and "ban"have specific meanings, that's not my problem. Slavery was "legal" in the 19th century too and plenty of people thought it was a perfectly moral concept -- for that matter homosexual acts themselves were illegal even up until recently.

Answer 5

There are three types of law to consider here: 1) common law, 2) statutory law, and 3) constitutional law.

You are right that traditionally, gay marriage had never been legal to begin with, and that was because of "common law." But after the ruling by the Hawaii Supreme Court in 1993 -- or more precisely, after that ruling became national news a couple of years later -- it became important to most people to be more explicit about it. So most states started creating statutes and many of them have created amendments to their state constitutions.

You are right, because all that has happened is that common law became statutory law and has become constitutional law -- but there is still no net change since it is still all the same law.

Does this make it any clearer?

Answer 6

That's a red state for ya.
But in reality, many states didn't have a law making gay marriage illegal until recently, and some of them want a federal ban on it, which seems unconstitutional to me.
http://www.stateline.org/live/ViewPage.action?siteNodeId=136&languageId=1&contentId=15576

Answer 7

From Websters online dictionary. Doesn't say anything about whether something has been accepted or legal in the past.



Main Entry: 1ban
Pronunciation: \ˈban\
Function: verb
Inflected Form(s): banned; ban·ning
Etymology: Middle English bannen to summon, curse, from Old English bannan to summon; akin to Old High German bannan to command, Latin fari to speak, Greek phanai to say, phōnē sound, voice
Date: 12th century
transitive verb
1archaic : curse
2: to prohibit especially by legal means ; also : to prohibit the use, performance, or distribution of
3: bar 3c

Answer 8

There are (currently) the two faces of "Marriage".
1. IF it's condoned by a recognized church, what business does the Government have to say it's "Illegal"?
2. IF they (the Government) truly wanted the "issue" to go away, then they should get out of "the marriage business" all together!

Answer 9

Maybe they should do away with the term "ban" and just use "keep illegal".
There are some gay people who are in long term, committed relationships and consider themselves "married". Perhaps that's where the "ban on gay marriages" comes from. If it's illegal, it's already banned.

Answer 10

Makes about as much sense as banning something because someone might legalize it.

How do you protect a freedom or privilege by excluding people from it? You don't. The simple reality is gay people pay taxes just like everyone else and are entitled to have the same protections for their relationships as heterosexuals. Gay marriage isn't a drug nor does that analogy even hold water.

And someday they will.

Answer 11

well it is legal now in Massachusetts. But I believe you still have to either be a Mass resident or in the middle of moving to Mass, in order for the ceremony to be performed.

I think people's opinions of "banning" it would be to end it in Mass... or to stress to their Congressmen that they definitely do not want it enacted in their own state. So every time it came up for debate, the vote would continue to be "no".