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Thread: Gay marriage guaranteed under originalism/strict constructionism

  1. #1

    Gay marriage guaranteed under originalism/strict constructionism

    Discrimination based on sexual orientation is just gender discrimination, no? And the 14th amendment's drafters made it purposely open-ended, so to say it doesn't apply to gender (or to sexual orientation without the gender connection) is baseless, its open-ended and inclusive by default. It would be unusual and bizarre for any arbitrary legal category to "get around" the 14th amendment, and gay marriage bans are as arbitrary as it gets.

    I'm not saying this as a supporter of it, its just clearly they're in the constitution, its equal protection. I don't think abortion is guaranteed even though I'm pro-choice, but gay marriage is. Lol the entire purpose of the law is to "make a statement." That's just admitting to violating the Equal Protection Clause, its labeling ppl for the sake of labeling ppl.



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  3. #2
    Marriage is a 1st amendment issue. (see the religion clause. Marriage is a religious institution) No doubt some clergy/ministers/etc would marry teh gheys, but lots would refuse and be within their rights.
    Quote Originally Posted by Torchbearer
    what works can never be discussed online. there is only one language the government understands, and until the people start speaking it by the magazine full... things will remain the same.
    Hear/buy my music here "government is the enemy of liberty"-RPEphesians 6:12 For our struggle is not against flesh and blood, but against the rulers, against the authorities, against the powers of this dark world and against the spiritual forces of evil in the heavenly realms.

  4. #3
    Quote Originally Posted by heavenlyboy34 View Post
    Marriage is a 1st amendment issue. (see the religion clause. Marriage is a religious institution)
    Not really. There were marriages long before the institution became involved with religion. The issue isn't whether the government can force a religious body to marry a same-sex couple (it can't), but whether the government can discriminate against such couples by refusing to allow them to be married in a civil ceremony.

  5. #4
    Quote Originally Posted by Sonny Tufts View Post
    Not really. There were marriages long before the institution became involved with religion.
    Oh bull$#@!!

  6. #5
    Its not just a religious institution. The fact that atheists get married contradicts this. An atheist has a constitutional right to get married, just like theists, simply on equal protection (theists and atheists get the same rights), and first amendment (right to association). The fact that its history is religious doesn't permanently tie it to religion. Private property, government, corporations, armies, all of these have religion intertwined with their history. To say that the First Amendment, which bans endorsement of religion of any kind (unless you wanna pretend Christianity is there when its not, because our founders did not intend to put it there), creates a governmental benefit of some kind (tax benefits, recognition, etc.) that only involves religion is ridiculous.

    Your interpretation of the First Amendment contradicts the First Amendment, government can't endorse religion. By your logic, government-marriage should be banned. (Actually, are you saying this? Maybe I'm jumping to conclusions about you.)

  7. #6
    Yes, government based marriage should be banned.

  8. #7
    The 14th amendment was ratified by coercion. Forgive me if I dont think too highly of it.
    Equality is a false god.

    Armatissimi e Liberissimi

  9. #8
    Quote Originally Posted by GunnyFreedom View Post
    Yes, government based marriage should be banned.
    Suppose it were. If a person dies without a will, who gets his or her property?



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  11. #9
    //
    Last edited by specsaregood; 05-16-2016 at 09:41 PM.

  12. #10
    Quote Originally Posted by specsaregood View Post
    Are you implying that you need a government marriage in order to ensure the wife/husband gets it?
    How else is the government to determine who a person's "spouse" is, especially where there are competing claims to the estate?

  13. #11
    Quote Originally Posted by Sonny Tufts View Post
    How else is the government to determine who a person's "spouse" is, especially where there are competing claims to the estate?
    Well there is always a private contract option, I'd say a witnessed religious ceremony should count or even there used to be this concept called a common-law marriage. If 2 people simply say they are married and there are witnesses to it, that should be enough. If marriage is a right, why do you need the government to give them the privilege to do so?
    Last edited by specsaregood; 09-26-2014 at 12:35 PM.

  14. #12
    Quote Originally Posted by Sonny Tufts View Post
    Not really. There were marriages long before the institution became involved with religion.
    Absolutely not true.

    The issue isn't whether the government can force a religious body to marry a same-sex couple (it can't), but whether the government can discriminate against such couples by refusing to allow them to be married in a civil ceremony.
    Gays, unlike polygamists, can be married in a civil ceremony in any state in the union. The question is can does the government then have to recognize said private ceremony. Further in many states if you wish to marry your first cousin or closer you can be arrested. Genetic preference discrimination? Does having different marriage ages in different states constitute age discrimination?
    9/11 Thermate experiments

    Winston Churchhill on why the U.S. should have stayed OUT of World War I

    "I am so %^&*^ sick of this cult of Ron Paul. The Paulites. What is with these %^&*^ people? Why are there so many of them?" YouTube rant by "TheAmazingAtheist"

    "We as a country have lost faith and confidence in freedom." -- Ron Paul

    "It can be a challenge to follow the pronouncements of President Trump, as he often seems to change his position on any number of items from week to week, or from day to day, or even from minute to minute." -- Ron Paul
    Quote Originally Posted by Brian4Liberty View Post
    The road to hell is paved with good intentions. No need to make it a superhighway.
    Quote Originally Posted by osan View Post
    The only way I see Trump as likely to affect any real change would be through martial law, and that has zero chances of success without strong buy-in by the JCS at the very minimum.

  15. #13
    Quote Originally Posted by Sonny Tufts View Post
    Suppose it were. If a person dies without a will, who gets his or her property?
    That's really a silly argument. Seriously. Don't die without a will. If you can take the time to fill out an application for a marriage certificate you can take the time to write on a piece of paper "I leave all of my possession to X." And if you don't like wills do a living trust. Have a joint checking account. There are lots of ways to pass possessions on to someone else when you die.
    9/11 Thermate experiments

    Winston Churchhill on why the U.S. should have stayed OUT of World War I

    "I am so %^&*^ sick of this cult of Ron Paul. The Paulites. What is with these %^&*^ people? Why are there so many of them?" YouTube rant by "TheAmazingAtheist"

    "We as a country have lost faith and confidence in freedom." -- Ron Paul

    "It can be a challenge to follow the pronouncements of President Trump, as he often seems to change his position on any number of items from week to week, or from day to day, or even from minute to minute." -- Ron Paul
    Quote Originally Posted by Brian4Liberty View Post
    The road to hell is paved with good intentions. No need to make it a superhighway.
    Quote Originally Posted by osan View Post
    The only way I see Trump as likely to affect any real change would be through martial law, and that has zero chances of success without strong buy-in by the JCS at the very minimum.

  16. #14
    Quote Originally Posted by specsaregood View Post
    Well there is always a private contract option, I'd say a witnessed religious ceremony should count or even there used to be this concept called a common-law marriage.
    True, but if there's a dispute a common-law marriage (or a valid contractual one) has to be proved in court, so you still have the government (i.e., the judicial system) determining the existence of a marriage. And many states have abolished the common-law marriage concept because of the uncertainties of proof, relying instead on an objective test: marriage license plus a ceremony before someone authorized to legally marry people.

    And relying on a religious ceremony is problematic because you have the government deferring to a religious institution; in case of conflicting claims (e.g., did the marriage comply with all the necessary religious formalities?) the court could get forced into determining theological matters, which it should not be doing.

  17. #15
    Quote Originally Posted by jmdrake View Post
    That's really a silly argument. Seriously. Don't die without a will.
    That's excellent advice that unfortunately isn't always followed. The point isn't what should one do to avoid intestacy; the point is, what happens to an intestate's property? If you want it to go to a surviving spouse, how is the relationship of "spouse" to be determined?

  18. #16
    Quote Originally Posted by Sonny Tufts View Post
    True, but if there's a dispute a common-law marriage (or a valid contractual one) has to be proved in court, so you still have the government (i.e., the judicial system) determining the existence of a marriage. And many states have abolished the common-law marriage concept because of the uncertainties of proof, relying instead on an objective test: marriage license plus a ceremony before someone authorized to legally marry people.

    And relying on a religious ceremony is problematic because you have the government deferring to a religious institution; in case of conflicting claims (e.g., did the marriage comply with all the necessary religious formalities?) the court could get forced into determining theological matters, which it should not be doing.
    Its not a perfect world. I didn't think the argument was to get rid of courts or the judicial system, I didn't think that was your question either. The point remains there are plenty of options other than the need for a government licensed marriage. Yes, if 2 people decide to use a religious institution to marry, why not defer to it? That was THEIR choice.

    I'm of the opinion that if 2 people say they are married, they are married. That should be enough.



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  20. #17
    Quote Originally Posted by jmdrake View Post
    The question is can does the government then have to recognize said private ceremony. Further in many states if you wish to marry your first cousin or closer you can be arrested. Genetic preference discrimination? Does having different marriage ages in different states constitute age discrimination?
    There are valid reasons to prohibit marriages between close relatives, and since some minimum age limit has to be set it isn't age discrimination. On the other hand, no one has yet come up with a valid reason to deny same-sex couples the right to legally marry.

  21. #18
    Quote Originally Posted by Sonny Tufts View Post
    That's excellent advice that unfortunately isn't always followed. The point isn't what should one do to avoid intestacy; the point is, what happens to an intestate's property? If you want it to go to a surviving spouse, how is the relationship of "spouse" to be determined?
    You didn't actually address what I said. I will repeat it. It takes no more effort to fill out a will than it does to fill out a marriage certificate. Seriously. It doesn't. The point of the government isn't to protect people from their own stupidity. If the government got out of the marriage licensing business, responsible clergy (or ship captains or whoever atheists will get to marry them) will be on notice that instead of running couple down to make sure they've signed the government sanctioned marriage certificate, they will run couples down to make sure they've signed the church (or ship or whatever) sanctioned "marriage contract". Really. It's just a freaking piece of paper. What makes one any better than the other? (Rhetorical question there.) When I got married the preacher chased us down afterwards to make sure we got the marriage license signed. Whoopteedoo! The state says we're married. (I'm divorced now. Fat lot of good that piece of paper did.) So no. I don't at all believe that someone having to sign a document that actually spells out their wishes is somehow worse than someone having to sign a document where only the lawyers ultimately know what it means. Seriously. In different states spouses get different amounts when the other spouse dies. If you think being married means your spouse gets everything, then you don't really know anything about estate law. In some states the spouse only gets 50% or less. But that's not written on the marriage certificate. That's written in the state statute which most likely nobody at the wedding ceremony has read. If getting the state out of marriage means more people write wills or do trusts instead of counting on the state to make up for their own stupidity, I fail to see why that is a bad thing.

    Edit: More on elective share. In Florida the spouse only gets 30% if there is no will.

    http://www.leg.state.fl.us/Statutes/...0732/0732.html

    Dying without a will or a trust is dying intestate regardless of whether you are married or not. Gays who sit down with a lawyer (or a good do it yourself legal book) and figure this out for themselves are better off than straight couples who naively think the government's going to handle it for them.
    Last edited by jmdrake; 09-26-2014 at 02:12 PM.
    9/11 Thermate experiments

    Winston Churchhill on why the U.S. should have stayed OUT of World War I

    "I am so %^&*^ sick of this cult of Ron Paul. The Paulites. What is with these %^&*^ people? Why are there so many of them?" YouTube rant by "TheAmazingAtheist"

    "We as a country have lost faith and confidence in freedom." -- Ron Paul

    "It can be a challenge to follow the pronouncements of President Trump, as he often seems to change his position on any number of items from week to week, or from day to day, or even from minute to minute." -- Ron Paul
    Quote Originally Posted by Brian4Liberty View Post
    The road to hell is paved with good intentions. No need to make it a superhighway.
    Quote Originally Posted by osan View Post
    The only way I see Trump as likely to affect any real change would be through martial law, and that has zero chances of success without strong buy-in by the JCS at the very minimum.

  22. #19
    Quote Originally Posted by Rifleman View Post
    The 14th amendment was ratified by coercion. Forgive me if I dont think too highly of it.
    Agreed, but even if one considers the 14th amendment legitimate. There is still the fact that sodomy laws were common place until recently. 'Same sex marriage' is an absurd joke made up by modern liberals.
    Quote Originally Posted by dannno View Post
    It's a balance between appeasing his supporters, appeasing the deep state and reaching his own goals.
    ~Resident Badgiraffe




  23. #20
    Quote Originally Posted by Sonny Tufts View Post
    There are valid reasons to prohibit marriages between close relatives, and since some minimum age limit has to be set it isn't age discrimination. On the other hand, no one has yet come up with a valid reason to deny same-sex couples the right to legally marry.
    Really? Because I can't think of any. The whole "They might have birth defects?" Well gays can't have kids at all without outside help. Maybe cousins are willing to do that. Once we decide marriage is not about having children, then to discriminate against incest "for the children" is silly. As for the minimum age, it's inflated. People used to get marriage much younger than they do now. Why is it 18 in most states? To encourage young people to finish high school. But say if someone gets his/her GED at 18? And before you had minimum ages, you didn't typically have 4 year olds getting married. People used some common sense. Imagine that? Now "common sense" is a HS senior becoming a registered sex offender for life for sleeping with his girlfriend that's two years younger than him. That seems pretty stupid to me. But that's the world we live in. Yeah big government!
    9/11 Thermate experiments

    Winston Churchhill on why the U.S. should have stayed OUT of World War I

    "I am so %^&*^ sick of this cult of Ron Paul. The Paulites. What is with these %^&*^ people? Why are there so many of them?" YouTube rant by "TheAmazingAtheist"

    "We as a country have lost faith and confidence in freedom." -- Ron Paul

    "It can be a challenge to follow the pronouncements of President Trump, as he often seems to change his position on any number of items from week to week, or from day to day, or even from minute to minute." -- Ron Paul
    Quote Originally Posted by Brian4Liberty View Post
    The road to hell is paved with good intentions. No need to make it a superhighway.
    Quote Originally Posted by osan View Post
    The only way I see Trump as likely to affect any real change would be through martial law, and that has zero chances of success without strong buy-in by the JCS at the very minimum.

  24. #21
    Quote Originally Posted by William Tell View Post
    Agreed, but even if one considers the 14th amendment legitimate. There is still the fact that sodomy laws were common place until recently. 'Same sex marriage' is an absurd joke made up by modern liberals.
    Interestingly enough, in her concurrence in Loving v. Texas, Sandra Day O'Connor indicated that she might have upheld general sodomy laws, but went along with striking Texas' sodomy law because it was same sex specific.
    9/11 Thermate experiments

    Winston Churchhill on why the U.S. should have stayed OUT of World War I

    "I am so %^&*^ sick of this cult of Ron Paul. The Paulites. What is with these %^&*^ people? Why are there so many of them?" YouTube rant by "TheAmazingAtheist"

    "We as a country have lost faith and confidence in freedom." -- Ron Paul

    "It can be a challenge to follow the pronouncements of President Trump, as he often seems to change his position on any number of items from week to week, or from day to day, or even from minute to minute." -- Ron Paul
    Quote Originally Posted by Brian4Liberty View Post
    The road to hell is paved with good intentions. No need to make it a superhighway.
    Quote Originally Posted by osan View Post
    The only way I see Trump as likely to affect any real change would be through martial law, and that has zero chances of success without strong buy-in by the JCS at the very minimum.

  25. #22
    People have a natural right to associate with whoever they want. Government should not interfere with that. Period. If they want to make some sort of contract, government should not interfere. It's a 1st amendment issue; not a 14th amendment issue.

    There are no "valid" reasons to interfere when both (or more) parties are consenting. It's none of government's business.
    "And now that the legislators and do-gooders have so futilely inflicted so many systems upon society, may they finally end where they should have begun: May they reject all systems, and try liberty; for liberty is an acknowledgment of faith in God and His works." - Bastiat

    "It is difficult to free fools from the chains they revere." - Voltaire

  26. #23
    Quote Originally Posted by jmdrake View Post
    Gays, unlike polygamists, can be married in a civil ceremony in any state in the union. The question is can does the government then have to recognize said private ceremony. Further in many states if you wish to marry your first cousin or closer you can be arrested. Genetic preference discrimination? Does having different marriage ages in different states constitute age discrimination?
    Wait, are you justifying the discrimination against gays by saying that other kinds of discrimination exist? You can't actually justify the categorization that states have created, so you're just going to flatly defend discrimination in general?

    Unlike gay discrimination, discrimination based on age or blood relation (not family relation) actually does have a justification:

    Young ppl cannot consent to sex or any serious contracts under our legal system. And no, different ages for different states is not discrimination, that has nothing to do with discrimination, that's different rules in different states. Discrimination is where a state applies the rules differently (or applies different rules) to different ppl within their jurisdiction. The fact that two separate entities make two separate decisions on the same issue is not discrimination, its two different entities.

    Banning marriage based on blood relation (or at least banning intercourse) has a basis, and this was the rational, secular reason for our laws against incest. Centuries ago, adoption was almost nonexist, and so incest really did imply blood relation. Today, obviously that's not the case, and there is no justification for a category where ppl can't married or have sex if they have no blood relation.

    But unlike banning child marriages or incestuous marries, there is no justification at all for banning gay marriage, hence you cannot articulate one. And if you could articulate one, I suggest you go to law school and become a lawyer, because you'd become the wealthiest attorney of all time. The argument doesn't exist, federal judges laugh out loud and say "You just can't come up with it, can you?," its like alchemy. Its not happening.

  27. #24
    Quote Originally Posted by Sonny Tufts View Post
    How else is the government to determine who a person's "spouse" is, especially where there are competing claims to the estate?
    In the absence of government coercion, it would simply be another 10 seconds worth of time to sign a document during the marriage process that assigns the spouse as next of kin. There is absolutely no need for government guns and coercion to get involved.



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  29. #25
    Quote Originally Posted by maybemaybenot View Post
    Wait, are you justifying the discrimination against gays by saying that other kinds of discrimination exist? You can't actually justify the categorization that states have created, so you're just going to flatly defend discrimination in general?
    SMH. Learn to read. I'm saying if way to end all government discrimination in marriage is to get the government all the way out of marriage. It's retarded to push for state recognition of gay marriage when polygamy is actually criminal and the fact that most of those pushing for gay marriage aren't pushing for even decriminalization of polygamy shows they're a bunch of liberal hypocrites.
    9/11 Thermate experiments

    Winston Churchhill on why the U.S. should have stayed OUT of World War I

    "I am so %^&*^ sick of this cult of Ron Paul. The Paulites. What is with these %^&*^ people? Why are there so many of them?" YouTube rant by "TheAmazingAtheist"

    "We as a country have lost faith and confidence in freedom." -- Ron Paul

    "It can be a challenge to follow the pronouncements of President Trump, as he often seems to change his position on any number of items from week to week, or from day to day, or even from minute to minute." -- Ron Paul
    Quote Originally Posted by Brian4Liberty View Post
    The road to hell is paved with good intentions. No need to make it a superhighway.
    Quote Originally Posted by osan View Post
    The only way I see Trump as likely to affect any real change would be through martial law, and that has zero chances of success without strong buy-in by the JCS at the very minimum.

  30. #26
    Quote Originally Posted by GunnyFreedom View Post
    In the absence of government coercion, it would simply be another 10 seconds worth of time to sign a document during the marriage process that assigns the spouse as next of kin. There is absolutely no need for government guns and coercion to get involved.
    Exactly! I don't get why people think it's harder to sign a will than it is to sign a marriage certificate. Plus with marriage your spouse is only guarantee 30% of your estate in some states. If you want to guarantee your spouse gets everything, or even half, you need a will or a trust or something other than a marriage certificate. Why people would allow the government to decide how their goods would be disposed of upon death is beyond me. You don't even need a lawyer. Write it out on a piece of notebook paper and sign it. That's a legal will in many states.
    9/11 Thermate experiments

    Winston Churchhill on why the U.S. should have stayed OUT of World War I

    "I am so %^&*^ sick of this cult of Ron Paul. The Paulites. What is with these %^&*^ people? Why are there so many of them?" YouTube rant by "TheAmazingAtheist"

    "We as a country have lost faith and confidence in freedom." -- Ron Paul

    "It can be a challenge to follow the pronouncements of President Trump, as he often seems to change his position on any number of items from week to week, or from day to day, or even from minute to minute." -- Ron Paul
    Quote Originally Posted by Brian4Liberty View Post
    The road to hell is paved with good intentions. No need to make it a superhighway.
    Quote Originally Posted by osan View Post
    The only way I see Trump as likely to affect any real change would be through martial law, and that has zero chances of success without strong buy-in by the JCS at the very minimum.

  31. #27
    Quote Originally Posted by jmdrake View Post
    Exactly! I don't get why people think it's harder to sign a will than it is to sign a marriage certificate. Plus with marriage your spouse is only guarantee 30% of your estate in some states. If you want to guarantee your spouse gets everything, or even half, you need a will or a trust or something other than a marriage certificate. Why people would allow the government to decide how their goods would be disposed of upon death is beyond me. You don't even need a lawyer. Write it out on a piece of notebook paper and sign it. That's a legal will in many states.
    Too many people worship government as though it were a god. Even Christians. The 501(c)3 tax status has a lot to do with this.

  32. #28
    The issue with marriage has nothing to do with sentiment. It has everything to do with property rights and legitimacy of children. And taxes. Don't forget about the taxes.

    1. There should be a date certain beyond which the current tax code is declared null and void. It should be replaced with a flat tax for every man, woman, and child, regardless of age, marital status, and income.

    2. There should be a simple, legal way to dispose of property at one's death that does not involve courts or taxes.

    3. There should be a simple, legal way to determine medical decisions. This should be determined by the patient, not the law.

    Change these, and it does away with any advantage or disadvantage to marriage. Of course, the legitimacy of children will still be an issue, but lacking documentation, the woman who bears the child will likely end up with the authority to make decisions about the child. If there is a legal marriage, then both parents will bear equal responsibility and have equal authority to make those decisions.
    Last edited by euphemia; 10-04-2014 at 02:54 PM.
    "There are two freedoms - the false, where a man is free to do what he likes; the true, where he is free to do what he ought."~~Charles Kingsley

  33. #29
    Take all of the things the federal government does that distinguish between married and unmarried people, which are a prerequisite for making the issue the OP brings up meaningful.

    Each and every one of those things is excluded by the very same argument of strict construction of the 14th amendment that the OP appeals to.

  34. #30
    I am all about making people be responsible for the children they bear or father.

    My personal morality and faith tradition protects marriage as one man and one woman, and for resulting pregnancies be carried to term. The Constitution does not define marriage in any way, and while the government has a vested interest in the disposition of property (because it might end up in a court), it should declare responsibility for a child born of a sexual relationship. The parents must be held to account in that regard, married or not.

    Perhaps if a pregnancy results from sexual activity, a legal marriage should be declared. It might make people more responsible for their actions in general if there was a legal obligation that all property would then be held jointly and children would be supported fully by the parents of those children.

    Just throwing that out there as a deterrent to irresponsibility that results in more government through welfare and other programs designed to support children.
    "There are two freedoms - the false, where a man is free to do what he likes; the true, where he is free to do what he ought."~~Charles Kingsley

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