Re: Two couples file federal suit to overturn Texas same-sex marriage ban
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. That is to say, that the constitution does not specifically list a right does not mean that we do not have it. The argument that we do not have the right to marry merely because the constitution does not say that we do, or that we lack any right because the constitution does not specifically guarantee it to us, is ALWAYS wrong.
I don't want to bother with quotes but we'll address the other points brought up.
1. Religion has no special hold on marriage, least of all a single religion in this country. For thousands of years, societies have been making rules about marriage, both for spiritual and secular reasons. And even so, most Americans don't want their marriages to suddenly have no legal authority. The vast majority of the people in this country, married or not, want marriage to be a legal status. These laws trace at least back to 13th century England, which is about the earliest legal body that our law is based on. In that society, while religion (and pretty much just Catholicism) had a part in marriage, it was still a legal status. That said, the favor given to a singular religious body and the entanglement it held with the law would be grossly unconstitutional in this country.
2. The "get government out of marriage" argument would always end up with a couple having fewer rights. The argument usually ends up demanding that all of the designations like medical and legal proxy and inheritance be determined in a living (or not) will, but there is absolutely no private contract that will confer on one partner immunity to being compelled to testify against the other. A loss of rights is guaranteed and there is no benefit obtained in exchange.
3. The supreme court has recognized marriage as a fundamental right that is protected by the constitution. Even if a state wanted to refuse to recognize marriages (which would be against the wishes of the people in that state), it would still have to recognize the status conferred by marriages in other states, or federally recognized ones.
There is no serious movement to destroy the legal institution of marriage. Since that is the case, there is no constitutional grounds for denying gay couples access to it. Marriage is a constitutionally protected fundamental right according to numerous supreme court cases, and thus is law, since we use a common law system. In order to infringe on that fundamental right, the government (state or federal) must provide reasoning to pass at least a rational basis test, likely a higher one. Every court case thus far that has addressed the overall constitutionality of SSM bans has found them unconstitutional. The Prop 8 case in California, which is the current highest level case, will be persuasive in any future deliberation, and it holds that SSM bans fail to meet even the rational basis test, and I am inclined to agree.
Please, what government interest is banning SSM rationally related to?
to adress your last sentence first,i never advocated banning ssm,or govt banning ssm,im more concerned about constitutionality,which throws both sides worlds upside down.
1,as stated,it is a religious construct,yes it has been upheld and enforced by governments for ages,but the world has either been run by religion,or religion run by govt for ages.however if the govt abided by keeping out of marriage and leaving it to religions,then it would be impossible for the govt to ban any kind of marriage.
2-yes the get the govt out of all marriage would lead to fewer rights or privelages,but as the constitution is set up now,a state would either legally have to accept all marriages,or none,as equality under law applies to all states,as written into amendment.meaning any state that bans ssm is technically violating the constitution,unless they ban all marriage as legally binding.any state that recognizes marriage as religious who bans ssm,would also be violating the first amendment,since if it was to be recognized solely as a religious construct,then the states would have no legal control over it,including banning or restricting.
again i really dont care for the supreme court ruling,as the supreme court was never granted the power to grant rights or add to the law,our constitution makes it where to add something,it must be written into law,or amended to the constitution,and the latter overwrites all law under conflicting interests between the two.
on your last paragraph first sentence,basically what i was trying to say all along,there is no grounds to deny ssm in any state or at the federal level,since no state has removed marriage from being state recognized.again in a constitutional argument,the court had no real authority to grant such a right or make it law,however they do have the right to challenge the states different laws,as they were granted power under the constitution,not over it,and all state level constitutions and laws must still follow the us constitution.
basically all this comes down to is that ssm cannot be denied without denying marriage to all,or to have it written into the us constitution as an amendment,which likely will never happen.i was a little too drunk to be coherant last night but that was the point i was trying to make
