Is There A Constitutional Right To Gay Marriage?

That’s the question the Associated Press asks, as reposted at The Blaze

Gay marriage supporters see 41 reasons to fret over the Supreme Court’s decision to take up the case of California’s ban on same-sex unions.

While nine states allow same-sex partners to marry, or will soon, 41 states do not. Of those, 30 have written gay marriage bans into their state constitutions.

That fact is worrisome to those who firmly believe there is a constitutional right to marry, regardless of sexual orientation, but who also know that the Supreme Court does not often get too far ahead of the country on hot-button social issues.

But, gay marriage advocates are positioning the coming SCOTUS review of the California marriage proposition and DOMA as one which will challenge and outlaw discrimination, much in the way that their decisions on sodomy, interracial marriage, and segregation laws did

The forces that mounted the legal challenge to Proposition 8 have said all along that the right to marry is so fundamental that it should not depend on success at the ballot box or the votes of state legislatures. Washington lawyer Theodore Olson, representing gay Californians who wish to marry, said he will argue that there is a “fundamental constitutional right to marry for all citizens.”

Is there a constitution right to marry? Much like the “separation of church and state”, this appears nowhere within any portion of the Constitution. There is no specific right for gay or straight people to marry.

But, one has to wonder about another part of the Constitution, equal protection under the law, which would also be known as equal treatment under the law. Yet, there are many cases where people are not treated equally under the law. People are taxed at different rates. Certain people who become political appointees are not prosecuted for tax evasion, while other citizens have their bank accounts seized and may do jail time. Women are mostly banned from combat positions in the military. The government ignores some laws at will. It institutes some laws affording certain pressure groups more protections under the law than others (hate crime legislation, for one). Should gays be treated the same under the law as straights who get married? Should gays be denied the same treatment as straights who are afforded the legal protections when it comes to things like visitation rights and property rights?

The problem is is that marriage should be left in the hands of the churches to decide. Yet, government has become involved in the process, requiring a license in order to be married in the eyes of the state. If we are a nation of law, not of men, should the government be required to give a marriage license to all citizens regardless of sexual orientation, but leave it up to the church to decide if it wants to perform a legal marriage ceremony? I’d have to say yes, regardless of any moral opposition I may have (note: I’ve always thought that the government should perform civil ceremonies, due to the equal protection under the law clause).

Crossed at Right Wing News and Stop The ACLU.

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3 Responses to “Is There A Constitutional Right To Gay Marriage?”

  1. Gumball_Brains says:

    i agree on your points Teach. However, one MUST look to the future.

    If this is allowed and that ANYONE can marry ANYONE, then what stops ANYONE marrying ANY NUMBER? What stops ANYONE from marrying ANYTHING?

    Have we not seen people marrying their pets in Hawaii and California?

    And, the argument that since some states allow for gay marriage, and therefore the feds MUST recognize it so that there is equal treatment across state lines is laughable. Should now all states recognize legal marijuana usage because a few states have legalized it?

    What if one state legalized prostitution as a recognized form of work due all health and legal protections under the law. If that “worker” then moves and wishes to continue her profession, should she now be allowed equal treatment in any other state she chooses to live?

    What if one state, let’s just silly-ly choose California for example, chooses to legalize marriage and sex with your horse. Should other states be forced to recognize that contract?

    This whole gay marriage kerfuffle is nothing more than an attack on Christianity and its influence upon America and its foundational laws. It is one of many growing attempts to further corrupt our moral base. We’ve already seen its influence upon our media. Are there any shows where there isn’t a homosexual or a gay couple or a homosexual liaison?

    If these people want LEGAL protections, then they should seek a LEGAL contract. If they want to get married, then just say you are and be done with it. Marriage is a religious institution. Marriage itself has two components – the religious bonding and the legal contract.

  2. Phineas says:

    Much like the “separation of church and state”, this appears nowhere within any portion of the Constitution. There is no specific right for gay or straight people to marry.

    One could argue that it’s a Ninth Amendment issue, the one dealing with unenumerated rights:

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    The question is whether a right to marry constitutes a “natural right,” as does the right to self-defense or freedom of speech. I’m not a constitutional scholar like Ted Olson, but I don’t think it is. Ever since no-fault divorce became the rule (in the 60s, here in California), marriage has essentially been a form of contract law, and states have broad power to regulate contracts. (Note, I’m a fan of the Lochner decision, so I believe in a very wide liberty to make a contract.)

    When Prop 8 was put before the people here in CA, I voted “yes,” even though I support allowing same-sex marriages, because I felt the CA Supreme Court had gone too far in imposing its will on the electorate. This is one of those issues that, like abortion, should really be allowed to come to a political consensus via the 50 state legislatures.

  3. john says:

    This is really a non issue to most, it is only the people who do think that the churches have the right to say who or wo not should marry that really care about it. The conservatives are going to be on the losing side of this, too. They seem to be taking a lot of hard body shots recently. Bummer.

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