Gay marriage guaranteed under originalism/strict constructionism

[maybemaybenot]

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.

Okay, you're being a bit ambiguous here, its why my post blatantly asked if I was interpreting you correctly. Don't jump on me cuz you won't state your position. If the government is involved in marriage, must it not also allow gay marriage?

And no, polygamy and gay marriage are not the same here, two reasons:

1. The constitutional (and human rights) violation in banning gay marriage is that its blatant gender discrimination, the only difference from heterosexual marriage is who a man can marry versus who a woman can marry, which goes against the Equal Protection Clause because there is zero rational basis behind the law. Allowing everyone to marry in 2-person marriages does not violate the Equal Protection Clause, because every individual has the exact same rights to marry one consenting adult of their choice. Maybe there's zero rational basis for banning polygamy, but there's also zero discrimination behind, too, so no constitutonal violation. That's like saying Bob can eat a burger but Jane can't eat dolphin cuz its banned, that's not discrimination, they have the exact same rights, but banning gay marriage results in individuals that do NOT have the same rights.

2. In practice, polygamy actually has been shown to be abusive and sexist, even if polygamy in theory is not. Polygamy isn't some open marriage, hippie thing, its men treating women like maids/workers in an agricultural setting (usually). The very religious scriptures justifying it always involve gender discrimination, and virtually no one is trying to start a marriage with multiple husbands. Now, its possible that polygamy is just as backwards as monogamy was two hundred yrs ago, but the government turned polygamy into a black market $#@!hole like prostitution and drugs, so we're actually only seeing the worst of polygamy probably. But even then, there is a rational basis for saying "polygamy is a bad thing," even if its an illusion created by the legal prohibition of polygamy. We cannot look at gay marriage and point to a fact saying "gay marriage is a bad thing." As federal judges have routinely told attorneys, "you are clearly unable to articulate a single fact against gay marriage," (paraphrasing) which is not the case for polygamy.

[maybemaybenot]

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.

...

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.

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.

Okay, but in reality, government marriage is here to stay. That being the case, it violates the equal protection clause and basic human rights to limit it based on gender. You can't just say "Oh, well I oppose this system entirely, so therefore I oppose discrimination." Do you think its constitutional to keep black ppl out of public schools, or to not send them social security checks? Equal protection, come on, ppl. We all pay for this institution (courts for divorce/kids, tax benefits, etc.), and therefore every citizen should get the same benefits from this institution. Its that simple.

You can't just say its ok because it would be awesome if government marriage didn't exist, this is a copout so homophobes can still pretend to be libertarians. (Btw, pro-lifers are still libertarians, its just a weird theoretical debate about individuals and life; homophobes are not libetarians, they're subscribers to the largest and dumbest bigotry of our era, and support discriminatory laws on that basis.)

[euphemia]

I don't care what people do in their own homes or spaces they rent or own. Seriously.

I think government should not try to sanction relationships. Or not. Welfare laws actually discourage marriage of any kind. It's all a way to control behavior through tax policy, while not really restricting anything except the right to make choices or use my money the way I want to.

My opinion about what people do privately is nobody's business but mine. At the same time, I should not have to violate my conscience by being forced to pay for something I might not agree to. Either way, the government is using my money to make a choice for me, or for someone else. It is not Constitutional. We all have freedom to choose what we want to believe without any penalty or endorsement by government at all.

[maybemaybenot]

I don't care what people do in their own homes or spaces they rent or own. Seriously.

I think government should not try to sanction relationships. Or not. Welfare laws actually discourage marriage of any kind. It's all a way to control behavior through tax policy, while not really restricting anything except the right to make choices or use my money the way I want to.

My opinion about what people do privately is nobody's business but mine. At the same time, I should not have to violate my conscience by being forced to pay for something I might not agree to. Either way, the government is using my money to make a choice for me, or for someone else. It is not Constitutional. We all have freedom to choose what we want to believe without any penalty or endorsement by government at all.

But the government cannot discriminate based on gender. Again, this is a copout. Are you saying the government can block blacks from getting married, too?

[euphemia]

this is a copout so homophobes can still pretend to be libertarians.

So does that make you a Christophobe? The Constitution is the basis for our liberty here in the US. People have freedom of faith and philosophy and the freedom of association. Just want to be clear on that.

[maybemaybenot]

So does that make you a Christophobe? The Constitution is the basis for our liberty here in the US. People have freedom of faith and philosophy and the freedom of association. Just want to be clear on that.

You're right, I misspoke, homophobes can be libertarians if they still believe in equal treatment, regardless of their personal views. So a homophobic libertarian has to say that government marriage, if in existence, has to be expanded to gays, based on libertarianism, the constitution, and general concepts of human rights.

[euphemia]

No, you misspoke by broadbrushing people who disagree as "homophobes."

I asked you a question. If you think people of faith should not be allowed to disagree, where does that put you on liberty issues, and does it make you a Christophobe?

[PierzStyx]

Not really. There were marriages long before the institution became involved with religion.

Prove it. Sociology says religion is one of the first things humanity invented. Religion says God (or the gods) revealed themselves to the earliest people. Either way you go religion is one of the oldest, if not *the* oldest, human institution. Fools just seem to not realize it because you go back far enough and our modern separation of church and state vanishes. The religion *is* the state. Pharaoh is a God. Gilgamesh is 2/3s a God. The reaosn people think marriage is purely a political institution is because of modern idiocy seeking to devoid religion of its historical purpose.

[Voluntarist]

xxxxx

[euphemia]

I do not think this is a 14th amendment issue at all. It's not even a Constitutional issue. The government does not establish marriage. The Census did not list it unitl 1850. States have taken the lead on determining the legality of marriage for a while, but every state did it differently, and continues to do it differently. For example, South Carolina had a common-law marriage statute, but now does not. Tennessee never recognized common-law marriages.

It still is not a federal issue.

[HVACTech]

I like this idea..

"strict constructionism"

In the United States, strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation.

[GunnyFreedom]

this is a copout so homophobes can still pretend to be libertarians.

Um. I was the only Republican in the NCGA to oppose the NC Marriage Amendment. I did so at GREAT personal cost to myself and my "political 'career.'" Does that sound "homophobic" to you?

If the government is rolling around killing everyone whose last name begins with "M," then I would likewise oppose a plan to 'start killing W's in the name of fairness.' This makes me afraid of W's? Have you even thought any of this out or are you just working from emotion?

[GunnyFreedom]

And yes, I don't care if every last "W" on the planet came up to me just begging to let the government murder them. Not gonna do it. Evil is evil, and expanding this evil to cover more people is in no way, shape, or form "less evil."

[euphemia]

Bovine Fecal Material.

A marriage is what individuals involved in a relationship consensually agree to - not what's imposed upon them by those outside the relationship

Not when children result from that relationship. In having sex and giving birth to a child, they have a tacit agreement to be responsible for supporting that child. What they do not have is an agreement with me that I will pay for the support of the child.

[euphemia]

Um. I was the only Republican in the NCGA to oppose the NC Marriage Amendment. I did so at GREAT personal cost to myself and my "political 'career.'" Does that sound "homophobic" to you?

If the government is rolling around killing everyone whose last name begins with "M," then I would likewise oppose a plan to 'start killing W's in the name of fairness.' This makes me afraid of W's? Have you even thought any of this out or are you just working from emotion?

I do not think you should try to justify or explain your position to a poster who is stretching the Constitution to make it do something it was not written to do. Don't let the name calling push your buttons. In the OP, he suggests that a prohibition of same-sex marriage is gender discrimination. I'm not sure how that works since same-sex relationships happen between men and between women. And there are people who are on record as having sexual relationships with both men and women. If they decide to marry someone, it can't really be said they have a discriminatory orientation.

Marriage is actually one of the most discriminatory relationships there is. I have routinely discriminated against all other men for several decades, and my husband discriminates against all other women.

[heavenlyboy34]

Okay, you're being a bit ambiguous here, its why my post blatantly asked if I was interpreting you correctly. Don't jump on me cuz you won't state your position. If the government is involved in marriage, must it not also allow gay marriage?

And no, polygamy and gay marriage are not the same here, two reasons:

1. The constitutional (and human rights) violation in banning gay marriage is that its blatant gender discrimination, the only difference from heterosexual marriage is who a man can marry versus who a woman can marry, which goes against the Equal Protection Clause because there is zero rational basis behind the law. Allowing everyone to marry in 2-person marriages does not violate the Equal Protection Clause, because every individual has the exact same rights to marry one consenting adult of their choice. Maybe there's zero rational basis for banning polygamy, but there's also zero discrimination behind, too, so no constitutonal violation. That's like saying Bob can eat a burger but Jane can't eat dolphin cuz its banned, that's not discrimination, they have the exact same rights, but banning gay marriage results in individuals that do NOT have the same rights.

2. In practice, polygamy actually has been shown to be abusive and sexist, even if polygamy in theory is not. Polygamy isn't some open marriage, hippie thing, its men treating women like maids/workers in an agricultural setting (usually). The very religious scriptures justifying it always involve gender discrimination, and virtually no one is trying to start a marriage with multiple husbands. Now, its possible that polygamy is just as backwards as monogamy was two hundred yrs ago, but the government turned polygamy into a black market $#@!hole like prostitution and drugs, so we're actually only seeing the worst of polygamy probably. But even then, there is a rational basis for saying "polygamy is a bad thing," even if its an illusion created by the legal prohibition of polygamy. We cannot look at gay marriage and point to a fact saying "gay marriage is a bad thing." As federal judges have routinely told attorneys, "you are clearly unable to articulate a single fact against gay marriage," (paraphrasing) which is not the case for polygamy.

Stossel did a show on this some years ago (can't find toobz ATM), and demonstrated your statement (bolded) to be false (or at least not universally true enough to make such an absolute statement).

[euphemia]

I'm wondering how a man married to more than one woman, living with them, and being a responsible parent to his children is worse than a man who fathers many children by different woman, lives with none of them and has never met any of those children and doesn't support them.

[Christian Liberty]

The 14th amendment was ratified by coercion. Forgive me if I dont think too highly of it.

That.

Also, to my knowledge pretty much every one of the founders wanted to criminalize homosexuality. I disagree with them, mind you ,but it would be odd to use the words they wrote to argue that homosexual relationships should be recongized by the government.

[Christian Liberty]

Okay, but in reality, government marriage is here to stay. That being the case, it violates the equal protection clause and basic human rights to limit it based on gender. You can't just say "Oh, well I oppose this system entirely, so therefore I oppose discrimination." Do you think its constitutional to keep black ppl out of public schools, or to not send them social security checks? Equal protection, come on, ppl. We all pay for this institution (courts for divorce/kids, tax benefits, etc.), and therefore every citizen should get the same benefits from this institution. Its that simple.

You can't just say its ok because it would be awesome if government marriage didn't exist, this is a copout so homophobes can still pretend to be libertarians. (Btw, pro-lifers are still libertarians, its just a weird theoretical debate about individuals and life; homophobes are not libetarians, they're subscribers to the largest and dumbest bigotry of our era, and support discriminatory laws on that basis.)

Homophobe = fear of homosexuals.

You're confusing fear with disgust. You're also confusing non-aggression with open armed acceptance.

[maybemaybenot]

No, you misspoke by broadbrushing people who disagree as "homophobes."

I asked you a question. If you think people of faith should not be allowed to disagree, where does that put you on liberty issues, and does it make you a Christophobe?

Well I like most Christians, even homophobes (and I don't say that in a joking way or anything), so no, wouldn't say I'm a christophobe. But if you think the government can discriminate based on gender, that's bigotry. You don't have to endorse it, the government doesn't belong to you, it serves all of us equally. I would get rid of government marriage too, but that doesn't mean the government can discriminate. Can blacks or Muslims be forbidden from getting married?

I do not think this is a 14th amendment issue at all. It's not even a Constitutional issue. The government does not establish marriage. The Census did not list it unitl 1850. States have taken the lead on determining the legality of marriage for a while, but every state did it differently, and continues to do it differently. For example, South Carolina had a common-law marriage statute, but now does not. Tennessee never recognized common-law marriages.

It still is not a federal issue.

Nope, its a federal issue. The Fourteenth Amendment says states cannot deprive anyone of equal protection under the law. Further, the supremacy clause says that the constitution is on top. So its a federal issue. Also, the Fourteenth Amendment is intended to be redundant, expansive and just impossible for anyone to get around. The Fourteenth Amendment is basically the libertarian amendment, along with the ninth or tenth (whichever is individuals, $#@! the states, that's a different philosophy that we also kindof like).

I like this idea...

"strict constructionism"

In the United States, strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation.

Strict constructionism isn't about limiting judicial interpretation, Scalia and Thomas interpret the constitution as much as anyone else. Its about strictly reading it, according to the plain meaning of the words, not pulling $#@! out of your asses like intellectually dishonest liberals. I'm totally serious, "living constitutionalism" is not simply wrong, its obvious bull$#@!, they just say "it should be about modern values, so therefore my value wins" as if gun control, abortion, and socialized healthcare are automatically modern values because liberals declare them to be. That is the beginning and end of strict constructionism versus "living constitutionalism" bull$#@!. But, that's what you guys are doing here with marriage equality, you're just saying your values wins because the constitution was written when everyone agreed with you. Read the constitution. Look at the words and their meaning. Thomas Jefferson's brain isn't the constitution, or the drafters of the fourteenth amendment or w/e, its the rules they created.

Marriage equality is strict constructionism. Read the Fourteenth Amendment:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Strict construtionism isn't conservative social values, and its not every political preference held by the drafters. Its the rule they put down and what they intended it to mean. Equal protection means equal protection. No one can dispute the fact that this is gender discrimination, you're saying men and women have different options, that's discrimination.

Further, no state can deny a citizen the privileges and immunities of being a US citizen. The ability to marry is a privilege of being a citizen. Gay/lesbian citizens cannot be denied this. Lol and don't say that its not a citizenship privilege being noncitizens can marry. The fact that even noncitizens can marry proves that citizens absolutely, positively have the ability to get married. How f'n horrible that two noncitizens can marry, but not US citizens that paid taxes and love eachother, solely because of religious objection.

Finally, the First Amendment says no religion can be endorsed. This means that no matter how religious or secular marriage is, government cannot have marriage laws based on religion, period. It has to be as nonreligious, and inclusive of everyone's religious views, as possible. You can't say its only marriage based on your religion, you can't say that its only individuals who think of marriage or religion the same way you do. Your objection to another person doing something that you yourself do is that your religion doesn't allow it? Its hypocritically pissing on the US constitution, and the very amendment that protects your right to practice your religion, and treat it in a religious manner. Communist countries banned religion, and religious involvement in marriage, but the state can't do that here because of the First Amendment.

Um. I was the only Republican in the NCGA to oppose the NC Marriage Amendment. I did so at GREAT personal cost to myself and my "political 'career.'" Does that sound "homophobic" to you?

If the government is rolling around killing everyone whose last name begins with "M," then I would likewise oppose a plan to 'start killing W's in the name of fairness.' This makes me afraid of W's? Have you even thought any of this out or are you just working from emotion?

And yes, I don't care if every last "W" on the planet came up to me just begging to let the government murder them. Not gonna do it. Evil is evil, and expanding this evil to cover more people is in no way, shape, or form "less evil."

What's the NC marriage amendment? If you opposed it a ban on gay marriage, then I'm not sure how I called you a homophobe in my post. Btw, I'm not trying to say homophobe in a horrible way, as weird as that sounds, to me its like saying somebody's grandmother is a little racist. You're not lynching anyone, its just a weird time in our history, I don't hate you guys.

I do not think you should try to justify or explain your position to a poster who is stretching the Constitution to make it do something it was not written to do. Don't let the name calling push your buttons. In the OP, he suggests that a prohibition of same-sex marriage is gender discrimination. I'm not sure how that works since same-sex relationships happen between men and between women. And there are people who are on record as having sexual relationships with both men and women. If they decide to marry someone, it can't really be said they have a discriminatory orientation.

Marriage is actually one of the most discriminatory relationships there is. I have routinely discriminated against all other men for several decades, and my husband discriminates against all other women.

Mary can marry Bob. John cannot marry Bob. This is discrimination.

Stossel did a show on this some years ago (can't find toobz ATM), and demonstrated your statement (bolded) to be false (or at least not universally true enough to make such an absolute statement).

So... you can't tell me why?

That.

Also, to my knowledge pretty much every one of the founders wanted to criminalize homosexuality. I disagree with them, mind you ,but it would be odd to use the words they wrote to argue that homosexual relationships should be recongized by the government.

$#@! man, you got me stumped on the Fourteenth Amendment being coerced. Its so true. I got nothing on that. My constitutional law professor (huge libertarian, might not like Ron Paul but likes ppl who do) talked about it. But as for the founders, their brains didn't become the law, they wrote the law to be interpeted by human beings based on the plain meaning of the words. Further, the fourteenth amendment was by different drafters, 'new founders' (very new country kindof). But, to go back to your pt, they opposed allowing whites and blacks to marry, this is why the Supreme Court allowed the ban on interracial marriage. But that's not what the Equal Protection clause says. (Not trying to guilt you with race, just to make a pt about consistently following rules, its my whole pt)

Homophobe = fear of homosexuals.

You're a bigot. How about that.

[heavenlyboy34]

So... you can't tell me why?

The cost/benefit ratio of typing it out is not in my favor.

[Danke]

Your so stupid. Does the 14th A allow plural marriages? How about sister brother marriages?

Such a stupid argument. Why bring up the 14th A. It was for a specific class that had nothing to do with most State Citizens.

[maybemaybenot]

Your so stupid. Does the 14th A allow plural marriages? How about sister brother marriages?

Such a stupid argument. Why bring up the 14th A. It was for a specific class that had nothing to do with most State Citizens.

And where does it say "race" in the fourteenth amendment? Where does it name any category or "specific class" of any kind? Its purposely open, not purposely limited in the way you're describing.

Banning polygamy does not give ppl different rights based on gender. Banning homosexual marriage does give ppl different rights based on gender.

[Danke]

And where does it say "race" in the fourteenth amendment? Where does it name any category or "specific class" of any kind?

It doesn't... Know history?

[GunnyFreedom]

What's the NC marriage amendment? If you opposed it a ban on gay marriage, then I'm not sure how I called you a homophobe in my post. Btw, I'm not trying to say homophobe in a horrible way, as weird as that sounds, to me its like saying somebody's grandmother is a little racist. You're not lynching anyone, its just a weird time in our history, I don't hate you guys.

Actually, you said that anybody who opposes expanding the definition of marriage to include homosexual marriage is a homophobe, and that the libertarian justification that government should not be involved in marriage is just an excuse.

I consider government-licensed marriage to be an aggressive crime against those so-licensed. I oppose government sponsored marriage, and while I am working to end the government licensure of marriage, I adamantly refuse to expand that crime over more classes of people.

Those are the characteristics you listed to call people homophobes.

There is a pretty solid chance that had I not opposed the NC Constitutional Amendment banning gay marriage, that I would still be in the General Assembly. Government sponsored marriage is a crime against God.

So the government is committing crimes against people by requiring that marriages be recognized by the government. My refusal to add more classes of victims to this government crime, in your opinion makes me a homophobe.

In my opinion, that makes you irrational and driven purely by emotion.

[maybemaybenot]

It doesn't... Know history?

So you you're just ignoring the constitution's text. You're not saying "Oh, this is actually what it means." You're just saying some human being who wrote it had a particular belief, even though he didn't write it down in the constitution. This isn't even ambiguous text, because you're not even basing your argument on the constitution. You're just saying your views are what the constitution must mean, like "living constitutionalists," only you're imputing 1800 rules into a document that doesn't state those rules.

[maybemaybenot]

Actually, you said that anybody who opposes expanding the definition of marriage to include homosexual marriage is a homophobe, and that the libertarian justification that government should not be involved in marriage is just an excuse.

I consider government-licensed marriage to be an aggressive crime against those so-licensed. I oppose government sponsored marriage, and while I am working to end the government licensure of marriage, I adamantly refuse to expand that crime over more classes of people.

Those are the characteristics you listed to call people homophobes.

There is a pretty solid chance that had I not opposed the NC Constitutional Amendment banning gay marriage, that I would still be in the General Assembly. Government sponsored marriage is a crime against God.

So the government is committing crimes against people by requiring that marriages be recognized by the government. My refusal to add more classes of victims to this government crime, in your opinion makes me a homophobe.

In my opinion, that makes you irrational and driven purely by emotion.

No where in this post do you mention the constitution in any way at all. I'm not talking about the policy, I'm talking about the constitution's position. I agree with getting govt out of marriage, but it is in marriage right now. The constitution bans discrimination. The constitution isn't some libertarian guy. Can the govt ban interracial marriage under the constitution? II'm not talking about saving those poor black ppl from the evil institution of government marriage, I'm talking about constitutional rights. The government may have ruined marriage by monopolizing it, but that means they need to make that status available to anyone who wants it.

[euphemia]

Marriage is not an invention of the Constitution. It happened well before the founding of the United States. The states have always codified marriage in their own ways, and they change their laws. Tennessee has never recognized common-law marriage. As late as 1979, South Carolina did recognize common-law marriage, but now does not.

I think you are trying to twist the Comstitution to mean what you want it to mean and those who do not agree with you are broad brushed as homophobes or idiots or fake libertarians. You would deny a person the right to faith/philosophy and the freedom of association.

That's just sad and rather small minded.

[GunnyFreedom]

No where in this post do you mention the constitution in any way at all. I'm not talking about the policy, I'm talking about the constitution's position. I agree with getting govt out of marriage, but it is in marriage right now. The constitution bans discrimination. The constitution isn't some libertarian guy. Can the govt ban interracial marriage under the constitution? II'm not talking about saving those poor black ppl from the evil institution of government marriage, I'm talking about constitutional rights. The government may have ruined marriage by monopolizing it, but that means they need to make that status available to anyone who wants it.

The. government. has. no. authority. to. recognize. marriage. at. all.

Expanding an unconstitutional policy, does not make it constitutional

It is unconstitutional for the government to murder everyone with an "M" in their name. Getting the government to also murder people with a "W" in their name does not make the action 'more constitutional.'

[maybemaybenot]

Marriage is not an invention of the Constitution. It happened well before the founding of the United States. The states have always codified marriage in there own ways, and they change their laws. Tennessee has never recognized common-law marriage. As late as 1979, South Carolina did recognize common-law marriage, but now does not.

I think you are trying to twist the Comstitution to mean what you want it to mean and those who do not agree with you are broad brushed as homophobes or idiots or fake libertarians. You would deny a person the right to faith/philosophy and the freedom of association.

That's just sad and rather small minded.

The. government. has. no. authority. to. recognize. marriage. at. all.

Expanding an unconstitutional policy, does not make it constitutional

It is unconstitutional for the government to murder everyone with an "M" in their name. Getting the government to also murder people with a "W" in their name does not make the action 'more constitutional.'

So both of you thought it was wrong for the Supreme Court to force states to allow interracial marriage? And both of you think its constitutional to pass a law specifically called the "No Social Security Checks for Black People Act of 2014"?