Marriage as a fundamental right.

[Gregory Matthews]

A lot of discussion has taken places related to whether or not homosexuals should have the right to marry each other. It has been argued as to whether or not basic civil rights are involved. Distinctions have been made between marriage and civil unions.

NOTE: My personal opinion is that basic civil rights are involved and that it is up to the individual States whether or not to allow homosexual marriage or civil unions.

It has been argued that the civil rights under discussion here are derived from the Bible. I do not argue whether or not the Bible speaks to such issues. In the context if my discussions I have argued from the standpoint of civil law. IOW, it is civil law that defines civil rights, as I am discussing them here.

Shane has cited Hernandez v Robles (2006) which determined that New York State had the right to prohibit homosexual marriages. That ruling was made in regard to the New York Constitution. Marriage is generally considered to be a function of the individual States. I am not here to argue any position in regard to the 50+ States and territories that come in some manner under the U.S. Constitution. Thus, I do not argue that the Hernandez decision was wrong.

My argument is based upon the U.S. Constitution. In the following post, I will present here what I believe the 14th Amendment has to say on this issue and the extent to which it governs what the individual States provide in their statutes.

[Gregory Matthews]

Simply put, this is what the applicable part of the 14th Amendment says:

Quote:

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.

Note: There are three parts of Section 1 which might apply:

1) Privileges and immunities

2) Due process

3) Equal protection

I will discuss each of these three as the they may be applied in the 14th Amendment:

1) Privileges and immunities:

On the surface, it might look like the "privileges & immunities" granted to U.S. citizens are founded in the U.S. Constitution. However, in the so-called "Slaughter-House Cases" the U.S. Supreme Court limited this section of the 14th Amendment of an exceedingly narrow range of cases. This narrowed range remains established case law. I do not believe that any homosexual marriage case would likely succeed if litigated on the basis of this clause in the 14th Amendment.

2) Due process:

At this time in the development of the legal system of the United States of America the individual States generally have a comprehensive view of what is required by "due process." I therefore, do not believe that the argument for homosexual marriage would likely succeed if argued on the basis of "due process" under the 14th Amendment.

3) Equal protection:

Over the years, the U.S. Supreme Court has appeared to many to be inconsistent in its determination as to the meaning of "Equal protection." From this perspective, the case for homosexual marriage in not a "slam-dunk" if argued on this basis. However, there are some rulings which establish precedent and may give support to one or the other views.

Fundamental to this issue is that the U.S. Supreme Court has established the right of marriage to be a "fundamental right." See Zablocki v. Redhail (1978). See also Loving v. Virginia 388 U.S.. 1. In Zablocki the Court ruled that the State of Wisconsin had unconstitutionally denied Redhail permission to marry under the Equal Protection Clause of the 14th Amendment. Loving found similar unconstitutional denial of the right to marry which was a "fundamental liberty" denied to Loving.

In Griswold v Connecticut, 381, U.Ss. 479 (1965), the ruling Court found that the denial of a right to marry was a denial of a fundamental right to privacy. IOW, according to court rulings, the decision whether or not to marry is a personal decision protected by the fundamental right to privacy. See also: Cleveland Board of Education v. LaFleur, 414, U.S. 632, 639-640 (11974). Note: I could cite numerous decisions that support this.

Summary: I cannot predict how the Court will rule if it accepts such a case. It could go either way. But, precedent clearly established marriage as a fundamental right.

[Dr. Shane]

In the New York case, it was the "equal protection" clause of the New York Constitution which the judge ruled did not apply to gay marriage rights.

The fact is that every man in the United States has the right to marry a woman. Every woman in the United States has the right to marry a man. That is equal protection under the law. If a state were to pass a law stating that a gay man could not marry a woman, that would be a violation of the "equal protection" clause of the 14th Amendment. A gay man has just as much right to marry a woman as a heterosexual man does. If a state bans gay men from marrying other gay men, that ban must also apply to heterosexual men. If a homosexual man cannot marry another man, a heterosexual man cannot either. That is equal protection under the law.

Regardless how the Supreme Court may rule, the American people can pass a Constitutional Amendment to overrule the Supreme Court. The Family Marriage Amendment failed before because Congress said that the Defense of Marriage Act was enough. If the Defense of Marriage Act is ruled unconstitutional, we will be in an entirely new political environment.

[Gregory Matthews]

Shane said:

Quote:

In the New York case, it was the "equal protection" clause of the New York Constitution which the judge ruled did not apply to gay marriage rights.

Your reference to Hernandez v Robles did say that the New Your statute (The Domestic Relations Law) did not violate the Due Process Clause of the 14th Amendment.

As to Equal Protection, Hernandez found that the Domestic Relations Law (DRL) of New York does not treat people equally:

Quote:

However, the legislation does confer advantages on the basis of sexual preference. Those who prefer relationships with people of the opposite sex and those w ho prefer relationships with people of the same sex are not treated alike, since only opposite-sex relationships may gain the status and benefits associated with marriage. . . . The distinction between opposite-sex and same-sex couples enacted by the Legislature does not violate the Equal Protection clause.

The above is a brief statement of the ruling of the NY Court. It remains to be seen, and cannot be predicted how the U.S. Supreme Court would rule on the preferential provision of civil rights.

Now notice the dissenting opinion of Chief Judge Kaye:

Quote:

Solely because of their sexual orientation, however--that is, because of who they love--plaintiffs are denied the rights and responsibilities of civil marriage.

and

Quote:

Under our Constitution, discriminatory views about proper marriage partners can no more prevent same-sex couples from marrying than they could different-race couples.

and

Quote:

By virtue of their being denied entry into civil marriage, plaintiff couples are deprived of a number of statutory benefits and protections extended to married couples under New York law. . . .Each of these statutory inequities, as well as the discriminatory exclusion of same-sex couples from the benefits and protections of civil marriage as a whole, violates their constitutional right to equal protection of the laws.

and

Quote:

Homosexuals meet the constitutional definition of a suspect class, that is, a group whose defining characteristic is 'so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy. . .

In relation to the statement in this forum that homosexuals have the right to marry people of the opposite sex:

Quote:

The purported "right" of gays and lesbians to enter into marriages with different-sex partners to whom they have no innate attraction cannot possibly cure the constitutional violation actually at issue here.

Yes, Shane, your reference to Hernandez provides much for thoughtful consideration. Thank you for bringing it to our attention. NOTE: There is much more, but I wanted to be brief.

[Gregory Matthews]

Shane said:

Quote:

The fact is that every man in the United States has the right to marry a woman. Every woman in the United States has the right to marry a man. That is equal protection under the law. If a state were to pass a law stating that a gay man could not marry a woman, that would be a violation of the "equal protection" clause of the 14th Amendment. A gay man has just as much right to marry a woman as a heterosexual man does. If a state bans gay men from marrying other gay men, that ban must also apply to heterosexual men. If a homosexual man cannot marry another man, a heterosexual man cannot either. That is equal protection under the law.

Two judges in Hendernaz disagree with Shane on the above point.

Judge Kaye in his dissenting opinion makes an intereting statement:

Quote:

II. Equal Protection

By virtue of their being denied entry into civil marriage, plaintiff couples are deprived of a number of statutory benefits and protections extended to married couples under New York law. Unlike married spouses, same-sex partners may be denied hospital visitation of their critically ill life partners. They must spend more of their joint income to obtain equivalent levels of health care coverage. They may, upon the death of their partners, find themselves at risk of losing the family home. The record is replete with examples of the hundreds of ways in which committed same-sex couples and their children are deprived of equal benefits under New York law. Same-sex families are, among other things, denied equal treatment with respect to intestacy, inheritance, tenancy by the entirety, taxes, insurance, health benefits, medical decisionmaking, workers' compensation, the right to sue for wrongful death and spousal privilege. Each of these statutory inequities, as well as the discriminatory exclusion of same-sex couples from the benefits and protections of civil marriage as a whole, violates their constitutional right to equal protection of the laws.

The above opinon of the law, clearly counters, Shane's opinion of the law.

It should be noted that Judge Ciparick concurs with Judge Kaye.

These dissenting opinions clearly establish the foundation for an Appealate Court to overturn the ruling in Hernandez.

[Gerr]

If marriage is a fundamental right no matter the gender, then so should a person who wants to marry his/her dog or whatever the pet. So should a mother-son, father-daughter, brother-sister, or whatever combination.

[Dr. Shane]

Two judges in Hendernaz disagree with Shane on the above point.

I am sure there are more than just two judges that disagree with me.

[Dr. Shane]

If marriage is a fundamental right no matter the gender, then so should a person who wants to marry his/her dog or whatever the pet. So should a mother-son, father-daughter, brother-sister, or whatever combination.

Of course you are right, Gerry. The issues isn't if marriage is a fundamental right or not. The issue is who has the right to define what a marriage is. At this time, that right resides with the states. Since the states are voting in amendments to define marriage as being heterosexual, the gay rights activists are seeking to have the federal government override the states. Of course, if that happens, it will lead to a federal showdown with people calling for an amendment to the federal Constitution.

Gay marriage is a real threat to religious liberty and God's Sabbath-keeping people need to be very aware of the satanic agencies at work.

[Neil D]

Gay marriage is a real threat to religious liberty and God's Sabbath-keeping people need to be very aware of the satanic agencies at work.

Remind this ol' boy HOW gay marriage is a real threat to religious liberty again????

[Gregory Matthews]

Gerry said and Shane agreed:

Quote:

If marriage is a fundamental right no matter the gender, then so should a person who wants to marry his/her dog or whatever the pet. So should a mother-son, father-daughter, brother-sister, or whatever combination.

Gerry, your post above sounds good and serves to inflame the public. But, it reflects a lack of understanding of both statute and case law.

The U.S. Supreme Court has clearly established marriage as a fundamental right. That is settled and is not debated by anyone who understands that law. At the same time, it is clearly established that the fundamental right to marry does not extend to an unrestricted right to marry anyone that one may want to marry. IOW, the individual States do have the right to limit marriage under carefully established boundaries as established by the Supreme Court. E.G. In one of our States it is lawful for first cousins to marry and in others it is not legal.

The bottom line is: The Supreme Court has NOT established marriage to people of the same gender as a right. In recent times, some individual States have done so and other States had excluded same gender people from marriage. Most people who understand the law believe that the Supreme Court will eventually have to rule on this. I agree.

However, I do not predict how the Supreme Court will rule and I think it could go either way. The issue will eventually be decided on the basis of whether or not marriage between same gender people fits the boundaries that the Court has established for the limitations on the established fundamental right to marry.

If the Court decides that same gender people have the right to marry, I believe that it will likely be on a basis similar to what Judge Kay said in his dissent in the Hernandez case. If the Court decides that same sex people may be excluded from marriage it will likely be on the basis that such an exclusion does not go beyond the boundaries established in the law.

[Dr. Shane]

Gerry, your post above sounds good and serves to inflame the public. But, it reflects a lack of understanding of both statute and case law.

I don't see anything inflammatory in what Gerry posted,,, just some good, old, common sense. Fact is that if the Supreme Court strikes down the states' right to define marriage, the issue is going to the public. The public will decide in the voting booth whether or not the federal Constitution gets amended. It won't be men in black ruling over the masses. It will be democracy at work and the people will be more concerned about the common sense from folks like Gerry than what elite men dressed in black robes think.

[Dr. Shane]

Remind this ol' boy HOW gay marriage is a real threat to religious liberty again????

Certainly. ----> A Clash of Rights

[Gregory Matthews]

Shane, if you do not think a reference to marriage to a dog is inflamatory, so be it. Further, it is not jsut good-old common sense.

Common sense knows that all marriage laws deal with "persons," as defined in the stature. Common sense knows that no marriage law in any parat of the U.S. of A., deals with marriage to a non-person. Therefore, whatever the courts decide in regard to homosexual marriage, there is not chance that humans and dogs will be involved in permission to marry.

Yes, I know that it was not stated that the law would allow it. It was just said that if allowed, people should be allowed to marry thier pet animals to include dogs.

That thought is inflamatory. It equates homosexuals to dogs.

[Gerr]

Quote:

Yes, I know that it was not stated that the law would allow it. It was just said that if allowed, people should be allowed to marry thier pet animals to include dogs.

That thought is inflamatory. It equates homosexuals to dogs.

Actually, inflaming people was the last thing in my mind. The reason I mentioned dogs and pets is because we are dealing with deviant behavior. I realize that those who practice same sex sex do not consider it so. But then probably so do people who have sex with the dead or animals consider it normal tension release. Or maybe we should also legalize polygamy. That has a more respectable history.

Quote:

Common sense knows that all marriage laws deal with "persons," as defined in the stature.

But then, if we are dealing with "assumptions", I believe most people would assume that "persons" would mean a man and a woman? The law did not specify gender probably because I am not aware of any historical precedence of same sex marriage that was ever sanctioned by law.

[Dr. Shane]

That thought is inflamatory. It equates homosexuals to dogs.

[Dr. Shane]

maybe we should also legalize polygamy. That has a more respectable history.

Polygamy actually has a history. That is something gay marriage doesn't have until the very recent past. Polygamists have a much better case to challenge state marriage laws prohibiting them. There are many ancient and present-day religions that allow polygamy.

[doug yowell]

The U.S. Supreme Court has clearly established marriage as a fundamental right. That is settled and is not debated by anyone who understands that law. At the same time, it is clearly established that the fundamental right to marry does not extend to an unrestricted right to marry anyone that one may want to marry. IOW, the individual States do have the right to limit marriage under carefully established boundaries as established by the Supreme Court. E.G. In one of our States it is lawful for first cousins to marry and in others it is not legal.

The bottom line is: The Supreme Court has NOT established marriage to people of the same gender as a right. In recent times, some individual States have done so and other States had excluded same gender people from marriage. Most people who understand the law believe that the Supreme Court will eventually have to rule on this. I agree.

However, I do not predict how the Supreme Court will rule and I think it could go either way. The issue will eventually be decided on the basis of whether or not marriage between same gender people fits the boundaries that the Court has established for the limitations on the established fundamental right to marry.

If the Court decides that same gender people have the right to marry, I believe that it will likely be on a basis similar to what Judge Kay said in his dissent in the Hernandez case. If the Court decides that same sex people may be excluded from marriage it will likely be on the basis that such an exclusion does not go beyond the boundaries established in the law.

I think that's probably a pretty good call,GM.That it's an issue that the courts even need to decide reveals the state of law in this country. In order to bypass the moral restrictions determined by society a certain segment must look to sympathetic jurists to open the legal doors. Since marital "rights" have NEVER IN THE HISTORY OF LAW been granted to homosexual unions it will be interesting to see whether or not the Supreme Court will create another Roe v. Wade type legal precedent.

[SivartM]

Gay marriages are quite obviously much closer to normal marriages than polygamy and cross-species marriages are. We are talking here about two adult human beings getting married. Nobody is going to legalize marrying babies or animals or appliances or more than one person just because gay marriage is legal.

[Dr. Shane]

I think history disagrees with you. Historically polygamy has been very common and widely practiced. Many consider it to be quite normal. A good friend of mine in college told me he was going to return to Kenya so that he could have more than one wife. Homosexuality and bestiality are both condemned in the Bible as perversions. As far as appliances... well,,, we have a private sex forum here. I suggest you take that topic there if you want to discuss that.

[doug yowell]

[ Common sense knows that all marriage laws deal with "persons," as defined in the stature.

Wouldn't common sense also recognize that,as Gerry pointed out,persons, in the context of marriage, have, without the need of definition, referred to persons of the opposite sex? Doesn't common sense also indicate that if "persons" can refer to same sex persons it can also reasonably be applied to it's plural nature? On what basis would "marriage" of multiple persons (of the same sex or any mixture thereof) be legally excluded. Or brother/sister? Or mother/son?

[SivartM]

10% of the population are estimated to be homosexual. That's most likely far more than want to marry more than one person or want to marry an animal. But apparently polygamists are more worthy of marriage than gays. Polygamists are at least allowed to marry one person. Homosexuals aren't allowed to marry anyone they would want to.

[doug yowell]

10% of the population are estimated to be homosexual. That's most likely far more than want to marry more than one person or want to marry an animal. But apparently polygamists are more worthy of marriage than gays. Polygamists are at least allowed to marry one person. Homosexuals aren't allowed to marry anyone they would want to.

Actually, more accurate estimates put the figure between 1-3%.And polygamists cannot marry anyone they want to either. Why do you think that homosexual unions have never been treated as marriages?

[Dr. Shane]

10% of the population are estimated to be homosexual.

[doug yowell]

I believe that is prison population. 10% of prisoners are estimated to be homosexual.

I believe the 10% figure popularly quoted by many supporters is a high end reference to those that are estimated to have engaged in homosexual acts.This experimentation(more prevelent in prison)does not reflect that all who engage are "gay",otherwise it could be argued that 10% of all criminals were homosexual.I don't think anyone has gone there yet.

[Dr. Shane]

The numbers I have seen are that 2%-3% of males are homosexual and about 2% of females. A Gallup study actually found that most Americans believe that over 20% of the population is gay - so there is a lot of bad information out there.

Here are some stats for the UK. How many gay people are there in Britain? One can easily see how society's attitude impacts the behavior. Men in the lifestyle increased nearly 1% over the 90s. Women in the lifestyle increased 2%, which is more than four times what it was. Obviously a lot of these people are choosing to be gay.